Loring v. Craft

| Ind. | May 29, 1861

Per Curiam.

Bradley B. Loring made his last will, dis

posing of all of his property, and died. He left a widow, who, with others, was a devisee in the will. The widow took the provision made for her in the will; and she now sues the executor for the sum of $300, which she claims is vested in her by statute, over and above the provision made for her in the will. 1 R. S., § 21, p. 251.

With some hesitation, we have concluded she is entitled to recover. Cheek v. Wilson, 7 Ind. 354" court="Ind." date_filed="1855-12-26" href="https://app.midpage.ai/document/cheek-v-wilson-7033051?utm_source=webapp" opinion_id="7033051">7 Ind. 354; 8 id. 71; 1 R. S., § 41, p. 255. See Collier v. Collier, 3 Ohio St. Rep. 369.

The judgment is reversed, with costs. Cause remanded, &c.

(1 .) By counsel for appellee : The will disposes of all the testator’s property, and the claim of the widow can not he allowed without defeating other bequests.

“ A leading, if not the earliest decision as to election, is Noyes v. Mordaunt, a case of real estate, which was followed by Vincent v. Vincent, a case of personal estate, by French v. Standish, the case of a copy-hold estate, and by many other cases; the result of which appears to be, that a person shall not claim an interest under an instnment, whether a deed or a will, without giving full effect to that instrument as far as he can. This rule has been said to be universal, and without exception. It applies to interests of married women; interests immediate, remote, or contingent; of value or not of value.” 2 Maddock’s Chan. 47. See, also, 2 Story’s Eq. Jur. § 1075.