No. 8320 | Ind. | Nov 15, 1882
— This is an action for partition commenced by appellee, as the widow, against appellants, as the heirs, of Edward Burkhalter, deceased.
In the year 1866, the deceased, a widower, with ten children, was married to the plaintiff, a" widow, with two children. They lived together, without issue "by the second marriage, until the 2d day of December, 1878, when he died testate, the owner of certain real estate sought to be partitioned.. The will of 'the testator is made a part of the complaint, and the con
The appellants claim that by the will the appellee' has an interest in and takes only the real estate mentioned in the first item, and that such provision is in lieu of her interest in his ■other lands. The appellee claims that, by the first and second items of said will, she was to have the real estate mentioned in the first item, in addition to wHat she would have been allowed to receive if no will had been made, and that she was entitled to one-third of the residue of his said real estate. The two clauses of the will are as follows:
“Item first. I give and devise to my beloved wife the house in which we now reside, together with the other buildings on the lot of land containing about three acres, more or less, to hold during her natural life, and a horse and buggy, if she desires it, two cows and as many hogs as she needs, and all the provisions on hand, and all the household furniture that she •desires to keep. At the death of my said wife the real estate aforesaid I give and devise to my natural heirs.
“Item second. I give and devise all my estate, real and personal (after paying my just debts), to my natural heirs. To my ■children I give to each one an equal portion after my beloved wife has taken her portion according as the law provides.”
Appellee, in her petition, claimed the lot of land and the house and buildings thereon situated, named in the first item •of the will, as her separate property under the will, and asked for one-third in partition of the other lands. A demurrer was overruled to the complaint. The defendants excepted, and ■ filed the following answer, in substance: After stating the relative position of the parties, and the date of their marriage, it avers that the plaintiff brought no property to said marriage, it being understood between her and said Edward that the property she had would go to her children; that after said marriage the said testator acquired no other property, but upon the lot mentioned in the first clause of the will he built
To this answer a demurrer Avas sustained, and the defendants excepted. A judgment of partition, according to the petition of the plaintiff, was rendered, commissioners were appointed Avhó reported partition accordingly, and a final judgment of partition was entered of record.
The overruling of the demurrer to the complaint or petition, and the sustaining of the demurrer to the first paragraph of the answer, are complained of as errors in the court below.
The answer states facts more fully than the petition, but both demurrers present the same question, and that is: Is the provision for the widoAV in the first item of the Avill in lieu of her interest in the remainder of the testator’s real estate t The 41st section of the law of descent (1 R. S. 1876, p. 415), and the 2505th section of the R. S. 1881, provides that “If lands be devised to a Avoman, or a pecuniary or other provision be made for her by the will of her late husband, in lieu of her right to lands of her husband, she shall make her election whether she will take the lands so devised, or the pro
In the case of Smith v. Baldwin, 2 Ind. 404" court="Ind." date_filed="1850-12-06" href="https://app.midpage.ai/document/smith-v-baldwin-7031908?utm_source=webapp" opinion_id="7031908">2 Ind. 404, it was said : “We understand the meaning of this section to be, that where a provision is made for the widow in lieu of dower' in ,her deceased husband’s will, she shall elect between such provision and dower, and shall not take both; and that where the will is not explicit as to whether such provision is intended to be in lieu of dower, it shall be presumed to be so intended. The latter clause of the section declares the rules of construction where the will is not clear in its terms.” See the ease of Young v. Pickens, 49 Ind. 23" court="Ind." date_filed="1874-11-15" href="https://app.midpage.ai/document/young-v-pickens-7040451?utm_source=webapp" opinion_id="7040451">49 Ind. 23. In this last case it is said that if “ it does not plainly appear by the will to have been the intention of the testator that she should have the provision made by the will, in addition to her right in the lands of her husband, she must elect.”
This being the law, does it plainly appear by this will, that it was the intention of the testator that his widow should have the provision made for her in his will in addition, to one-third in the remainder of his real estate ? The first item gives her-a life-estate in certai n real estate, and certain personal property absolutely, with the remainder in that real estate to his. children. The second item gives to his children all the balance of his real and personal estate, after the widow “has-taken her portion, as the law provides.”
This last exception to the devise to his children appears to embrace her portion of the balance of the real as well as the personal estate, which had not been devised to the widow in the first item, and the second item can not be made operative and carried into effect without allowing the widow to take
The complaint, therefore, stated facts sufficient to constitute a good cause of action, and the answer did not state facts sufficient to constitute a defence. There was no error in overruling the demurrer to the complaint, or in sustaining the demurrer to the answer. The judgment ought to be affirmed.
Per Curiam. — It is therefore ordered, upon the foregoing opinion, that the judgment of the court below be and it-is in all things affirmed, with costs.