126 Ind. 493 | Ind. | 1891
— This opinion, in which we all concur, was prepared for the court by the late Judge Mitchell, and expresses the views and the judgment of the court.
The first clause of the last will and testament of Cyrus A. Hunt, late of Hamilton county, deceased, reads as follows:
“First. I will and bequeath to my beloved wife, Mary, * * one-half of the proceeds, from year to year, of my farm of one hundred and twenty acres in Delaware township, after the taxes have been paid on the land and the place kept in repair, during her natural life or until our son, Ross, comes to the age of twenty-one years.” By a subsequent clause of his will the testator devised to his infant son Ross, all the remaining interest and estate in his lands, subject to the foregoing provision in favor of his widow.
This is a controversy between the testator’s widow, who has married again, and the guardian of the minor son, the former claiming that by the terms of the will she is entitled to the possession of the undivided one-half of the land therein described; while the claim of the latter is, that as guardian he is entitled, in the right of his ward, to possess and control the land to the exclusion of the widow, and that her right is nothing more than to receive from him one-half the proceeds of the land after deducting taxes and repairs.
As will be observed, the devise to the widow is one-half
A devise of the proceeds of real estate is not materially different from a devise of the income, and the rule is that the devise or grant of the income of land carries an estate iü the land itself. Williams v. Owen, 116 Ind. 70; Bowen v. Swander, 121 Ind. 164, and authorities cited.
Questions of minor importance relating to matters of practice are discussed. We have examined these questions and find nothing which would justify the court in dealing with anything besides the merits of the case.
The judgment is affirihed, with costs.