Levengood v. Hoople

• Decision Date: 16 May 1890
• Docket Number: 14,281
• Citation: 24 N.E. 373,124 Ind. 27
• Parties: Levengood et al. v. Hoople et al
• Court: Indiana Supreme Court

24 N.E. 373

124 Ind. 27

Levengood et al. v. Hoople et al

No. 14,281

Supreme Court of Indiana

May 16, 1890

From the St. Joseph Circuit Court.

Judgment reversed, with directions to overrule the demurrer of the appellee to the second paragraph of the complaint, and for further proceedings not inconsistent with this opinion.

A Anderson, C. W. Wiley, and T. E. Howard, for appellants.

J. L Hubbard and J. P. Creed, for appellees.

OPINION

Coffey, J.

This was a suit in the St. Joseph Circuit Court for the partition of the land described in the complaint, and, also, to quiet the title to the same as against the appellee Mary Hoople. It appears by the complaint that David Rupert died in the month of November, 1870, seized in fee of the land in dispute, and leaving as his only heirs the appellee Mary Hoople and five children, among whom is the appellant Emma Levengood. At the time of his death the said David Rupert left a will containing the following clause:

"First. I give and bequeath to my wife Mary and heirs, for her to dispose of as she sees best, sell, bargain and convey, as much so as myself in person, to all intents and purposes, in law and equity, as follows, to wit: The tract of land now living on, wheat in ground, grain, such as wheat, corn, rye, or any kind in store, on hand or otherwise, horses, cattle, hogs, sheep, farming implements, harness, all household and kitchen furniture, or any other property whatsoever, that is to say, during the time she lives a widow or in my name. Then said land is to be equally divided amongst the present heirs of said David Rupert and Mary, his wife, or the proceeds of the same, as the case may be."

On the 21st day of December, 1875, the widow, Mary Rupert, intermarried with John O. Hoople, and was at the time of the commencement of this suit his wife.

The whole controversy between the parties to this suit turns upon the construction to be placed upon this clause of the will of David Rupert.

It is contended by the appellants that it was the intention of the testator to vest in his wife, Mary, an estate in the land during her widowhood only, while on the other hand it is contended by the appellee Mary Hoople that it was his intention to vest in her a fee simple upon condition that she should not remarry.

It is settled in this State, both by statute and by the repeated decisions of this court, that where a particular estate is devised to a wife upon condition that such wife shall not remarry, the condition is void, and the estate devised vests and is held the same as if it had not been coupled with the condition. Coon v. Bean, 69 Ind. 474; Stilwell v. Knapper, 69 Ind. 558.

It is also well settled that the husband may devise to his wife an estate to continue during her widowhood, and that he is not obliged to devise to her a larger estate. Harmon v. Brown, 58 Ind. 207; Tate v. McLain, 74 Ind. 493; Wood v. Beasley, 107 Ind. 37, 7 N.E. 331.

We are of the opinion that the will before us falls within the latter class. As we read it, it devises and bequeaths to the appellee Mary Hoople the tract of land upon which she and the testator...