28 Ind. App. 97 | Ind. Ct. App. | 1901
Appellant commenced this action against the estate of John M. Gordon, deceased. She seeks to recover for services rendered in caring for one Barsheba Gordon, who was the aged widow of decedent. Her claim was disallowed by the executor of decedent’s will and was transferred to the issue docket of the Marshall Circuit Court, where appellant upon leave granted by the court filed her .amended complaint. Appellee’s demurrer for want of facts was sustained and appellant declining to plead further, the ■court rendered judgment against appellant that she take nothing by her action, and that appellee recover his costs. The enly error assigned relates to the ruling of the trial court in sustaining appellee’s demurrer to appellant’s .amended complaint.
Vol. 28 — 7
In passing upon the sufficiency of the amended complaint, it is necessary to construe the will of John M. Gordon, deceased. The part of said will here involved is as follows: “Last will and testament of John M. Gordon, deceased. In the name of the Benevolent Bather of All, I, John 1VI. Gordon, of Marshall county, State of Indiana, do make and publish this my last will and testament: Item 1. I give and devise to my beloved wife, in lieu of her interest in my lands, the farm on which we now reside, situated in said county and State containing about thirty-five acres, to have and to hold the same during her life. I also give and devise to her ten acres of land situated in section thirty-three, township thirty-two, range three east, and also ■lot forty-four, situated in Eredericksburg, said county and State, together with all the 'stalk’, household goods, furniture, provisions, and other goods and chattels which may be thereon at the time of my decease, to have and to hold during her life as aforesaid, she however, selling lands thereof as may be sufficient to pay all my just debts. If, however, after selling a sufficient amount of my personal
Appellant’s counsel ask this court to construe the will to mean that the thirty-five acres of real estate, mentioned in the first item, is charged with the support of the testator’s widow in such a way as to malee it liable for the claim of appellant for services rendered such widow as stated in her complaint.
It seems to us that the intention of the testator is plainly expressed in his will, and in giving his intention effect no settled rules of law are violated. The thirty-five acre tract of land is given to the widow “to have and to hold the same during her life.” The meaning of this language is plain and explicit; no better words could have been used to create a life estate in the widow of the testator. The language of the subsequent portions of the will does not in any manner render it ambiguous or uncertain in any of its parts, and it is particularly certain and explicit as to this thirty-five acres known as the “home farm.” The widow is given the right to sell all the personal property, the town lot, the ten acre tract, “and she is hereby empowered and authorized to sell all of my real estate except the home farm and appropriate the same to her support,” etc.
It is seen that in giving his widow the right to dispose of certain property, the testator expressly excepted this thirty-five acre tract which is by the terms of the will to be sold and the proceeds divided amongst the children. The widow of John M. Gordon took only a life estate in the thirty-five ■acre tract. There is nothing in the language of the will to cast a doubt upon the construction here given it. It is particularly plain and explicit. The demurrer to the amended complaint was properly sustained.
Judgment affirmed.