41 Ind. App. 99 | Ind. Ct. App. | 1908
This is a suit to quiet title. Its determination depends upon the meaning of the provisions of the last will of Jephthah Whitman.
Plis widow elected to take under the will, item one of which provides for the payment of debts and expenses as soon after the testator’s death “as practicable.” In item two the executor is directed to sell all property, both real and personal, and reduce the same to money as soon after the testator’s death “as practicable.”
Items three, four and five are as follows: .
“Item 3. I give, devise and bequeath to my wife, Louisa Whitman, one-third of all my estate to be paid to her by my executor as soon as my estate has been reduced to money as provided in item two of this will.
Item 4. I give, devise and bequeath to my nephew, John T. Whitman, one-third of all my estate after the payment of any debts as provided in item one of this will.
Item 5. After the payment of my debts as provided in item one of this will, I give, devise and bequeath to the children of my deceased brother Moses Whitman to wit [naming them], and the brothers and sisters of my former wife, etc. [naming them], the remaining one-third of my estate, share and share alike. ’ ’
The judgment is therefore reversed, and the cause remanded, with directions to overrule the demurrer to the complaint.