Shafer v. Shafer

• Decision Date: 30 October 1891
• Parties: Shafer v. Shafer.
• Court: Indiana Supreme Court

129 Ind. 394

28 N.E. 867

Shafer

v.Shafer.

Supreme Court of Indiana.

Oct. 30, 1891.

Appeal from circuit court, Clark county; Charles P. Furgason, Judge.

Action by Ellen Shafer, widow of Henry Shafer, deceased, against David Shafer, executor, for the allowance of $500 to widows. Judgment for defendant, and plaintiff appeals. Affirmed.

John H. Stotsenburg and E. B. Stotsenburg, for appellant. J. K. Marsh, for appellee.

COFFEY, C. J.

This was a petition by the appellant, Ellen Shafer, as the widow of Henry Shafer, deceased, against the appellee, David Shafer, as the executor of the will of the said Henry Shafer, for an allowance of the $500 given to widows under the provisions of sections 2269, 2270, Rev. St. 1881. The question presented for our consideration involves the construction of the will. By the terms of his will, Henry Shafer gave to his wife, the appellant here, certain described real estate in Clark county, to be held by her during her natural life or during her widowhood, and also all his personal property, except money, promissory notes, and choses in action. The will further provides that the executor shall invest the sum of $2,500 for the benefit of the appellant, and shall pay to her the interest thereon semiannually. He gave to his children and grandchildren all the remainder of his property, and provided by his will that upon the death of the appellant the executor should sell the property bequeathed to her, and divide the proceeds, together with the $2,500 invested for her benefit, equally among three children named in the will, or their descendants. The appellant elected to take under the will. It will thus be seen that the will disposes of all the property owned by Henry Shafer at the time of his death. Whatever may have been the rule of construction in this state prior to the decision in the case of Langley v. Mayhew, 107 Ind. 198, 6 N. E. Rep. 317, and 8 N. E. Rep. 157, it is now settled that, where a husband has made specific provision for his widow, and has also disposed of all his other property in such a way as to make it apparent that the assertion by the widow of the right to take both under the law and under the will would defeat the manifest purpose of the testator, she will be confined to the provisions made by the will, if she elects to take the provision made for her. Hurley v. McIver, 119 Ind. 53, 21 N. E. Rep. 325. It is true that a testator cannot dispose of the property which the law gives the...