183 Ind. 271 | Ind. | 1915
— The question to be determined by this appeal is the proper construction of the will of Alexander S. Freeman, deceased, which will is as follows:
“I Alererander S. Freeman do Make My last Will and Testement.
1. I Give and bequeth to Mrtha An Carneghan One hundred Dollars.
2. I Give and bequeth to Claranee Freeman Marry Inize Freeman. Ama Leona Surfiee Edman Homer Freeman. Lewis Freeman Rosco Freeman and Margret Nareisus Freeman at my deth the above to share and share alike. And each of the Boys one Horse except Clarence has received his Horse. The Girls is to receive One Cow and Bed each except Ama Freeman she has received her Cow and Bed.
3. To be divided after all Funeral expenses and other depts are paid.
i. I if Marrgret Nnarcisus and Marry Ineze Freeman if they Care for Me through My sickness at my deth they shall receive Fifty Dollars, each
5. I heae uppon Edman Hommer Freeman an Clarance Freeman Excutors of this Will
*273 In testimony whereof I have hereunte Set My hand this 12 day of August 1912.-
A S Freeman
Subscribed by Aliekjander Freeman in our presence and declared to be his last Will and Testament and attested by us as such in his presanee and in the presance of each other this 12th day of August, 1912.
Witness ’ II. II. Hilkey
Witness Anson P Green”
Appellant contends that under this instrument Alexander S. Freeman departed this life intestate as to all of his estate except as to the bequest of $100 in item one to appellant and except as to the bequests in item two of one horse to each of his boys, other than Clarence, and of one cow and bed to each of his girls, except Amy.
Appellees take the position that the testator intended to and did bequeath and devise all of his estate by virtue of the will now in suit; that item one gave to appellant the sum of $100; that item two specifically bequeathes certain property to his seven other children, naming them, and further devises and divides the residue of his entire estate generally among said children, they to share and share alike. This, in substance, is the construction which was adopted by the trial court.
The evidence shows that the testator left as his sole heirs at law eight children, viz., appellant Martha Ann Carnahan, the only surviving child of his first marriage, and Clarence, Mary Inez, Edmund Homer, Lewis, Rospoe, and Margaret Narcissus Freeman, and Amy Leona Surface, the children of his second marriage; that the mother of appellant died
Judgment reversed, with instructions to grant appellant a new trial and for further proceedings in accordance herewith.
Note. — Reported in 108 N. E. 955. As to specific demonstrative and general bequests, see 140 Am. St. 577. The law governing the construction of a will is set forth in 2 L. R. A. (N. S.) 443. See, also, under (1) 2 Cyc. 1913 Anno. 1013-new; (2, 5) 40 Cyc. 1409; (3) 40 Cyc. 1386, 1388, 1392; (4) 40 Cyc. 1413.