Beatty v. Irwin

• Decision Date: 05 April 1905
• Docket Number: No. 5,525.,5,525.
• Citation: 35 Ind.App. 238,73 N.E. 926
• Parties: BEATTY v. IRWIN.
• Court: Indiana Appellate Court

35 Ind.App. 238

73 N.E. 926

BEATTY

v.IRWIN.

No. 5,525.

Appellate Court of Indiana, Division No. 2.

April 5, 1905.

Appeal from Circuit Court, Bartholomew County; F. T. Hord, Judge.

Action by John W. Beatty against William G. Irwin, executor of the will of Josiah Beatty, deceased. From a judgment for defendant, plaintiff appeals. Affirmed.

Marshall Hacker, R. H. Spaugh, and Elliott, Elliott & Littleton, for appellant. C. S. Baker, for appellee.

ROBY, J.

Item 4 of the will of Josiah Beatty is in terms as follows: “Item Fourth. I will bequeath and devise unto my beloved wife Emma Beatty, in lieu of and instead of and in full of her legal equitable and lawful interest and absolute rights as my widow in and to my estate and property left by me at my death and upon the conditions following as to said real estate the following real estate in Bartholomew county in the State of Indiana, to wit: Lots numbered Nine (9) and Ten (10), in Sims and Finley's Addition to the town (now city) of Columbus, the same being my present dwelling house and premises occupied thereby and immediately contiguous thereto, and also all that certain part and portion of the east half of section thirty (30), township Nine (9), north of range Six (6) east, now owned by me, and of which I may die seized in fee simple together with all my interest, right and title in and to a certain lease and contract affecting a part of the last above described real estate executed and dated, signed also in duplicate on the 17th day of October, 1891, by myself and the Bartholomew County Trotting Association of Bartholomew County, Indiana, together with all money and rents due and owing to me or to become due and owing to me or to my estate upon and by virtue of said lease together with all the growing crop or crops whether severed or unsevered that may be on the last above described real estate and the last above described real estate, I so will and devise unto my beloved wife, Emma Beatty, only so long as she shall be and remain my unmarried widow if and in the event my wife, Emma Beatty shall after my death marry again then said real estate so willed and devised shall at once descend except the crops then thereon, equally share and share alike, in fee simple to my son John W. Beatty and granddaughter, Mary Brown, named in this will and if my said son John Beatty shall then be dead, my said sons surviving child or children as the case may be shall have take and inherit his said portion of said real estate and if my granddaughter, Mary M. Brown, be then, at the marriage of my said widow, dead leaving no issue alive of her body surviving her then her share and portion of said real estate shall go to and be inherited by my said son, John W. Beatty, in fee simple or by his children as aforesaid if he be then dead; and provided further and I will that if my said granddaughter, Mary M. Brown, shall become entitled to said portion as aforesaid of said real estate devised herein on the aforesaid condition of nonmarriage of my said wife and as set out in this Item Fourth above, prior to the time my said granddaughter shall attain the age of twenty-one (21) years then until she shall attain her said majority her said portion of said forfeited real estate shall be held in trust for her, Mary M. Brown my granddaughter, as hereinafter provided the real estate hereinafter devised to said Mary M. Brown, is to and shall be held, and in the event of the death of said Mary M. Brown without issue of her body surviving her prior to her said majority then her said portion of said forfeited real estate shall go to my said son John Beatty and to his children if he be dead as aforesaid, but if said Mary M. Brown shall die prior to her majority leaving any child or children of her body surviving her then her said forfeited portion of real estate shall go to such child or children so surviving her, but all said conditions in this fourth item of my will as to and concerning the forfeiture of said real estate last hereinabove described to my said wife and the taking thereof by said son and granddaughter and their children are void and without any force or effect in law and equity, unless my beloved wife Emma...