Indiana State sentinel. (Indianapolis, Ind.) 1861-1865, 1861-09-11

what fe.l to her under the law. her right must be
determined by the statute above quoted.
What the extent of that estate may be, in diff
fereHt contingencies, it is not necessary now to
determine. Is it an absolute fee till the subse-
quent marriage, then life estate during the con-
tlnuance of such marriage, then an absolute fee
again after the death of the husband of such
marriage, the wife suryivingf Was this the in
tention Of the Legisaturef Ought such to be
the lawf See Blackleach rs. Harvey. Ia Ind,
564
We next inquire whether Aliens widow is
bound to account, in the adjustment of the es-
tate. for the $4,000 worth of property received
from her husband in his life time.
That property does not constitute provision
by will in bar of dover, for the will says nothing
about it. 1t is an advancement; bus is it such an
advancement as is required % be brought into
hotchpotI
statute makes it such.
1t is not such by the common law. Blackstone
says, Book 2, p. ls9: "No lands but such as are
given in frank marriage shall be brought into
hotchpot;" but lands gwen in frank marriage
care defined to be, where tenements are given by
one man, together with wife who is the daugh
ter or cousin of the donor, to hold in frank mar
riage" Id. ll5
The lands in the case at bar are not SUCH
Our statute does not distinguish lands that
must be brought into hotchpot by this origin of
title; but it does, as does the common law, con-
fine this obligation within limits as to persons.
By the common law, it exists only between fe
male heirs, they only taking the estate in COM
mon by descent. Here it exists between heirs, re
gardless of sex. Our statute has abolished dow
er, the estate taken by the wife, at common law, +,
not heir, but as wife, and substituted a
fee simple, which the wife takes by descent as
heir of her husband, and independent of his pow
er to prevent it !; but il has not, in terms requ-
red her to bring advancements into hotchpot. 1t
thus subjects children only to this liability. This
may be a legislative oversight, but such is the
statute. 1t enacts that "advancements in real or
personal property shall be charged against the
child or descendants of the child to whom the
advancement is made;" but goes no furtler. Per
haps the supreme court, governed by the reason
rather than by the letter of the la W, should place
the widow on the footing of a child in this be-
half; but sitting at nisi prius, the writer does not
feel disposed to thus rule now. r. S. p. 250,
sec. H. See as TO the estate being cast by the
law upon the wife by descent, which, as we have
seen above, fills the definition of the term "heir;"
secs. IL, %, and following, pp. 250, 25l, | X. S
See, to advancements, that is, gifts TO
wife, instead of estates in trust, against the
person making them, and creditors, but not ne
cessarily to be brought into hotchpot. Mathews
on Presumptive Evidence. p. So, ct seq, Ed. of
1880. Story Eq. p. 6l2 ct. seq
May the conveyance ofthe property in question
to the wife be shown by parol to be provision
for her in the nature of jointure? Our statute
provides for two descriptions of ionture.
l. Pecuniary provisions made for and with the
consent of an intended wife or husband. In this
class, the consent of the intended wife or hus-
band must appear in writing. l r. s., p. 254,
sec. 81.
g Those made for the wife before coverture,
without her assent and those made after cover
ture. Id sec. 40.
In this class, there must be an election to take,
by the wife, within year after the death of her
husband, which election might probably be evil
denced by her declarations, and possession and en-
joyment of the provision, after the expiration of
the year mentioned, made for her as jointure;
Washburn on Real Property, vol. /, p. 273; as
the statute does not express how it shall be shown.
And, it may be observed, if the provision is held
jointure, il is bar to any and all inheritance; if
an advancement, tits, ifless than full share, a
BAR pro-tdnto only. | r. s., p. 250.
In this class, we think, also, the fact that the
provision was intended by the husband AS in the
nature of a jointure, may be shown by parol. The
statute does not say, in case of will, and if a
jointure with consent at the time, that it must ap
pear by the writing.
1t has been held that in contracts within the
statute of frauds, consideration may be shown by
pdrOi OrtgOrN vs.. IoSdii, DldChi IL. occ
Rockhill VS.. Spraggs, y Ind. 80. So, as to
whether given conveyance was intended to be
by way of advancement. Shaw VS.. Kent, ii
Ind So
The case at bar falls within the class under con-
sideration.
On the last point, viz whether the wild
ow, in case she establishes right to a por-
ton of the inheritance of which Allen died
seized, must contribute to payment of ncum
brances, no decision will now be made, as
the question does not necessarily arise in the
partition suit. We may observe that at COM
mon law, she would have been bound to con-
tribute to discharge the liens Whitehead VS..
Cummins, 2 Ind. So. Whether our statute has
madea change is the question. The demurrer to
the second paragraph of the answer of the de-
PENDANTS is overruled on the defendants striking
out the words pro-tanto therein, and is that to
the second paragraph of the answer OF William
and Kate Allen; and those to the Others are sus-
tanned.
Schermehorn, Huff & Jones for plaintiffs; Pratt
& Baldwin for defendants.