35 Ind. App. 238 | Ind. Ct. App. | 1905
Item four of the will of Josiah Beatty is in terms as follows: “I will, give, bequeath and devise until [sic] my beloved wife, Emma Beatty, in lieu of and instead of and in full of her legal, equitable and lawful interest and absolute rights as my widow in and to my estate and property left by me at my death and upon the conditions following as to said real estate the following real estate in Bartholomew county, in the State of Indiana, to wit: Lots numbered nine and ten, in Sims & Einley’s addition to the town (now city) of Columbus, the same being my present dwelling-house and premises occupied thereby and immediately contiguous thereto, and also all that certain part and portion of the east half of section thirty, township nine north, of range six east, now owned by me, and of which I may die seized in fee simple together with all my interest, right and title in and to a certain lease and contract affecting a part of the last-above described real estate executed and dated, signed also in duplicate on the llth day of October, 1891, by myself and the# Bartholomew County Trotting Association of Bartholomew county, Indiana, together with all money and rents due and owing to me or to become due and owing to me or to my estate upon and by virtue of said lease together with all the growing crop or crops whether severed or unsevered that may be on the last-above described real estate and the last-above described real estate, I so will and devise unto my beloved wife, Emma Beatty, only so long as she shall be and remain my unmarried widow if in the event my said wife, Emma Beatty, shall after my death marry again then all said real estate so willed and devised to her herein isj hereby willed and devised and shall at once descend excepr the crops then thereon, equally share and share alike, in fee simple to my said son John W.' Beatty and granddaughter Mary Brown, named in this will and if my said son John Beatty shall then be dead, my said son’s surviving child or children as the case may be shall have take and
The testator departed life in 1897, and his will being duly probated, the widow elected to, and did, take under its provisions. She departed life testate in 1908, her will being duly probated; and by its terms the real estate de
The will covers twenty-five pages of the record. By it a large amount of property was disposed of with painstaking detail. -The widow was entrusted with very large discretionary power relative to a variety of subjects. She was authorized to expend $3,000 for a family monument, $1,000 for curbing around it, $1,000 for repairing the graves of the testator’s relatives in such manner as she
The widow was appointed executrix. That the testator had and reposed great confidénce in her judgment and integrity was stated and reiterated, to which were added provisions to the effect that letters should be issued to her; that she should not be required, in law or equity, to give any bond or other obligation; that she should not be required to make any inventory or appraisement of any part of the personal property; that no public or private sales of personal property should be made, but that she should have full and unconditional authority to sell at such times as she deemed best, she being the sole and final judge thereof ; that she should make but one report as executrix, which should be a final report, and in which she be required only in a general way to- show that the directions of the will had been complied with. It is evident that the confidence of the testator in his wife was qualified only by the possibility of her remarriage, and the consequent introduction of a new factor into her calculations, against which he undertook to provide. Whether the condition was void (§2737 Burns 1901, §2567 R. S. 1881), or not, is immaterial, since the widow did not remarry, and the present inquiry is merely as to what estate was devised to her.
The conclusion reached by the trial court was correct, and the judgment is therefore affirmed.