132 Ind. 391 | Ind. | 1892
— The appellee is the widow of Philip Cooper, deceased, and claims title to the real estate in controversy under the will of her deceased husband. The appellant asserts title to the property, and founds his claim upon a deed executed to him by George "W. Cooper, a son and devisee of Philip Cooper, deceased. The question in the case arises upon the will of Philip Cooper, who is the common source of title. The contention of the appellant is that George W. Cooper took all the land de-' scribed in the devise to him; that of the appellee, Mary J. Cooper, is that the appellant took the land subject to the provision in her favor and that this provision vested
Item first of the will contains these provisions : “ I give and devise to my beloved wife, Mary Jane, in addition to her interest in my lands, the farm on which we now reside, also my farm in said township, county and State known as the Terebaugh farm, with the rents and profits, for the support of herself and my minor children during her natural lifetime. At her death I give and bequeath to my son Elijah the 160 acres, embracing the house, also I give and bequeath to my son Clark ~W. the 180 acres embracing the Terebaugh farm, as above mentioned and described. I give and bequeath to my son George "W. eighty acres of land adjoining the farm on which I now reside, the same on which my son James now resides and known as the Conn farm, also the west half of the northeast quarter of section twenty-three, town, two north, of range eight.’’ Various devises to other of his children were made by the testator in substantially the same terms as those employed in the devise to George W. Cooper. The lands devised are all specifically described, but we do not deem it necessary to copy these descriptions, nor do we deem it necessary to refer to the parts of the will giving directions as to the sale of divers parcels of property,
The will recognizes the interest of the wife conferred by law, and manifests an intention to devise to her the lands and estates described in addition to that interest. The clause “ in addition to her interest in my lands,” occupies a conspicuous place in the instrument, and is clear and unambiguous. It is the general rule that where a devise is made to the wife, and it does not appear that it was the intention of the testator that she should take the estate cast upon her by law, and also that given by the will, she must elect which estate she will take, that given by devise or that created by law. Hurley v. McIver, 119 Ind. 53; Shafer v. Shafer, 129 Ind. 394; Wright v. Jones,
In the case referred to it was held that the specific devise to the wife was in addition to the estate vested in her by statute. In the case before us we think the intention is more plainly manifested than in the one from which we have quoted. In addition to the clause quoted from the will we have the fact that the life-estate specifically devised to the wife is burdened by the charge in favor of the minor children of the testator, and this indicates that he did not intend to cut her off with that de
Judgment affirmed.
