The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-05-15
RECORD OF THE COURTS.
Proceedings in the Various Courts Of
Record Yesterday.
Full Abstract of the Opinions Rendered
by the Judges of the Supreme Court
Work In the Local Courts.
Supreme Court-May IL.

WILL-CoNSrRUCTION-DE TO WIDOW.
$500, William II. Burkhalter vs.. Anna Burk-
halter TIppecauoe G. e.
Franklin, C.-The question presented is "a to
the proper construction of "A will. The first item
or the Will devised TO the testator's wife certain
specified real estate during her life and certain
personal property. The second item devised all
tie real and personal estate to his natural heirs,
concluding with the words: "TO my children l
give TO each one an equal portion, after my be-
loved wife has taken her portion, according as
the law provides" II it does not plainly appear
by the will to have been the intention of the
testator that his widow shall have the provision
nlade by the will, in addition to her right in the
lands Of her husband. she must elect. q Ind,
404; Blkf., 387; r. s., sec. 9, 505) The excep-
zion In the second item OF the viii appears TO
embrace the wite's portion of the balance
OF the real as well the personal
estate, which had not been devised to
her In the first item, and the second item cannot
De made operative without allowing the widow
TO take one-thrd or the balance of his real estate,
as provided by law. Again, construction of both
Items makes 1t plainly appear to have been tho
intention OF the testatOrs TO give his widow the
property specified in the first item IN addition
10 what the law would give her in the balance,
independently OF the will. Judgment affirmed.
NEUTRALITY-SUSPICIOUS. ECTIoN-CoNsTRUC-
TON.
9,S29. Farley Kinsey VS.. Hiram satterthwaite.
Huntington G. @.
Morris, C.-JOhn W. Thomas being the owner
OF fractional quarter section of land, CONTAIN
ing 145 % 100 acres, decided the north half of 1t
TO his son James and the south half to his son
Thomas, Some time after these conveyances
che son employed surveyor to run a line east
and west through the quarter, so to divide
understanding thas their father had
conveyed the same number of acres to
brothers. extending fifty rods and each made
improvements on his half extending up to said
fence Appellants, as grantees Of the land con-
veyed to James Thomas, claim that the bOunda-
ries OF the land fixed by the government
survey. and could not be changed by the act OF
the brotheEs This position is not tenable. IL
fRn Fhn furN lid Nl..
land in accordance with what they understood
their fathers intention TO be. To do this would
oe eomhAendaole, and In violation of no law,
aud when the line was thus established and Inn
provements made it became binding upon the
parties. t12 Mass. 469l This fence was notice
to all OF the existence of the lue and IL the land
ON each side occupied and cultivated by
each OF the brothers respectively, such occu-
pancy would be sufficient to put subsequent
purchasers upon inquiry as to the rights and
interest OF the occupants, and that the land sold
extended only so far as said fence. Besides, the
his sons saa aese9Ssa Thq Ia"s
as the undivided quarter" etc. If the grantor
intended TO convey the north half OF said quar-
Ter according 10 the government survey, this
WORD would be meaningless But upon the theory
that there was no actual division of the land the
word would not DO without meaning. Judgment
affirmed.
DEcEDENTs' EsTATE-FRAUDULENr CONVEY
ANCEs.
10,046 George W. Botorff vs.. Mary E. Covert.
Clark. C. c.
Best. C.-Action by appellee to set aside a con-
Veyanoe as fraudulent, made by deeedent and TO
subject said land to the payment of a Judgment
In favor of the appellee. Lands thus conveyed
and held by a person with knowledge of the
fraud are liable to be sold for the payment of the
deeedents' debts Revised Statutes, 1881, Sec
tons ,333, 2.334.) An administrator or executor
may maintain an action to have such conveyance
act aside Il Ind, 227,) but his right to DO so il
not exclusive. Under the revision of 1852 IL has
has held that creditors of the dece-
dent may also maintain such action,
ami the right exists Un1pr ia
revision of 1881. go Ind, 473 ~ i'd, 45OJ
Section 2,342 of the statute does aot in terms
apply to lands fraudulently conveyed, hut to
such as the deceaent owned Mt his death, and
averment that the decedent had no other prop
erty at the time the conveyance was made, was
to aver that he did not acquire property after
the conveyance. az Ind, 800 72 i'd, SD
Judgment affirmed.
pEFAULTING oFFIcER-sURETIEs ON HIS BOND.
9,748 William E. Mowbray VS.. City of Peru.
Miami c. G.
smith. as treasurer of the appellee, against tho
principal and sureties, Of whom WAS de-
ceased. In such case the fact that the bond
was not approved until after tho death of u
surety, would not inValidate the bond as his con-
tract. ihrsndt on snretyship, sec. 442, ct
sea- seq. war,a Bkfs 20; 80 Ind, $l5,l
failed to take the oath of office. rs Ind, 81; 80
i'd, 46l Tue answer that in the temporary ah-
senee OF Goldsmith the common council unlaw-
rully and without notice to him his sureties
declared his office vacant and appointed sue
cessOr for the unex pired term was not sufficient
lt Goldsmith could show that he chad not aban-
doned this office, that vacancy existed, he
might have recovered the Office by "a proper pro
ceeding and 1t Ia plain that the sureties could
not make the action of the council an excuse for
the principals failure TO perform official duties
while In possession of tine office, or to pay over
money belonging to the city, 10 Ind 356; )
Id, 81: II i'd 516l Judgment affirmed.