117 Ind. 37 | Ind. | 1889
The facts in this case are the same as in the case of Amos v. Amos, ante, p. 19, and the controversy grows out of the same instruments to which we there gave a construction. The principal controversy here is between the widow of Liford K. Amos and the grantor in the deed referred to in that case, she claiming the entire estate in the land conveyed to her husband for life by his grandfather, while the grandfather, Joseph J. Amos, Sr., claims that the title to two-thirds, at least, of the land reverted to him. The other parties claim, as in the former case, that they took the entire estate when Liford K. Amos died.
In addition to what was said in the former case upon the
Between the widow, Eva W. Amos, and the grandfather of her deceased husband, the question is whether section 2473 of the R. S. of 1881 governs, or whether the case falls within the general law of descents. That section, so far as it is relevant here, reads thus: “An estate which shall have come to the intestate by gift or by conveyance, in consideration of love and affection, shall, if the intestate die without children or their descendants, revert to the donor, if living, at the intestate’s death, saving to the widow or widower, however, his or her rights therein.”
This statute makes provision for a peculiar class of cases, and expressly excepts it from the rules which prevail in ordinary cases. In Myers v. Myers, 57 Ind. 307, it was held that under this section the widow would take one-third of the land, not as heir, but in virtue of her rights as a surviving wife. A like ruling was made in Mitchell v. Parkhurst, 17 Ind. 146. In Thomas v. Thomas, 18 Ind. 9, it is taken for granted that this statute governs in all cases where the consideration is love and affection and the donee dies without children before the death of the donor, and it was held that the saving clause in it protects the widow. It was held
It is certain that both Liford K. Amos and his son got all the estate that ever vested in them from Joseph J. Amos, Sr., and that the consideration which induced the grant was love and affection, so that it is difficult to resist the conclusion, that, upon the death of Liford K. and his son, without children, the estate reverted to the donor. This phase of the controversy is not affected by the fact that the child of Liford K. took an estate in fee during his father’s lifetime, for the asserted limitation over was not effectual, but had it been, still the statute would preserve the rights of the donor as against the appellant, Eva "W. Amos. She is in this dilemma : If there was a valid limitation to the other grandchildren of Joseph J. Amos, Sr., it became effective upon the death of her child during the lifetime of her husband; but, if there was no such valid limitation, their, as neither her
Judgment affirmed.