68 Ind. App. 378 | Ind. Ct. App. | 1918
This is an action for partition. Appellant is the widow and was the third childless wife of Alexander F. Eamsey, deceased, who died on March 11,1907. Decedent left two children by a former marriage, one a daughter, Hepsey B. Yount, and her three children, the appellees in this appeal, and who are the grandchildren mentioned in the deed in controversy. Such deed contains the following:
“This indenture witnesseth that Alexander F. Eamsey of Montgomery county, Indiana, conveys and warrants to Ice H. Eamsey, his wife * * * for and during her natural life and at her death to descend share and share alike to the children of my daughter Hepsey B. Yount * * * for the sum of one dollar, love and affection, the following real estate: (Describing it.)”
In her complaint appellant claims a fee-simple title to one-third of such lands under the statute, and a life estate in the remaining two-thirds thereof by virtue of the provisions of the deed.
A demurrer to the answer for want of sufficient
It is contended by appellant that the facts revealed by the answer show that her husband had conveyed the lands in question by a deed in which she did not join, therefore, at his' death she became absolutely seized of a one-third interest in such lands by virtue of §§3027, 3029 Burns 1914, §§2489, 2491 R. S. 1881. The further claim is also made that by the provisions of the deed she is entitled to a life estate in the remaining two-thirds of the lands described therein.
The Supreme Court of this state, in disposing of a kindred question, has used this language: “Sup
Again applying the principles of equity which have been heretofore mentioned, we are satisfied that appellees’ answer is sufficient to meet all the essential averments of the complaint.
“The doctrine of election is founded upon the principle that one cannot accept and reject under the same instrument. He must give effect to the whole intention of the donor, and not merely to provisions which are intended as beneficial to himself, and the donor is presumed to have intended that every part of the instrument of donation should take effect, as well as those portions which deprive the donee of an advantage as those which confer a benefit upon him. In other words, the benefit conferred has annexed, to it, in accordance with the donor’s presumed intention, the tacit condition that the donee will give full effect to the instrument of donation by relinquishing all rights which are inconsistent therewith. Some authorities, however, declare the doctrine to rest not
In .the light of these authorities, our judgment leads us to conclude that the deed is authorized by law, and that its legal construction limits and confines appellant’s rights to the terms and conditions of the grant.
Judgment affirmed.
Note. — Reported in 120 N. E. 618. Effect of conveyance from husband to wife, 69 L. R. A. 353, 21 Cyc 1285, 1288.