Will, 98 Ia. 175 (67 N. W. Rep. 587); In re Peet's Estate, 99 Ia. 314 (68 N. W. Rep. 705); Outland v. Outland, 118 N. C. 138 (23 S. E. Rep. 972); as to suspension of ownership, Succession of Mc Can, 48 La. 145 (19 So. Rep. 220); as to implied direction to trustee to convey, In re Clark, 19 R. I. 110 (33 Atl. Rep. 585); as to the meaning of " improved real estate," Robb v. Robb, 173 Pa. St. 620 (34 Atl. Rep. 237); as to what is a charge on land, In re Lloyd's Estate, 174 Pa. St. 184 (34 Atl. Rep. 519); Johnson v. Conover, 54 N. J. Eq. 333 (35 Atl. Rep. 291); as to when nonaccepted trust estates should be distributed, In re President and Fellows of Yale College, 67 Conn. 237 (34 Atl. Rep. 1036); as to when a devise lapses, Jackson v. Alsop, 67 Conn. 249 (34 Atl. Rep. 1106); as to the creation of a spendthrift's trust, Wanner v. Snyder, 177 Pa. St. 208 (35 Atl. Rep. 604); as to the creation of conditional fees, Brooks v. Kipp, 54 N. J. Eq. 462 (35 Atl. Rep. 658); as to what works a conversion of realty to personalty, Taylor v. Haskell, 178 Pa. St. 106 (35 Atl. Rep. 732); Clarke v. Clarke, 46 S. C. 230 (24 S. E. Rep. 202; 57 Am. St. Rep. 675); as to amount of realty included, Chace v. Lamphere, 148 N. Y. 206 (42 N. E. Rep. 580); as to the creation of trusts, Allen v. Allen, 149 N. Y. 280 (43 N. E. Rep. 626); Packard v. Kingman, 109 Mich. 497 (67 N. W. Rep. 551); Crudup v. Holding, 118 N. C. 222 (24 S. E. Rep. 7); Henderson v. Williams, 97 Ga. 709 (25 S. E. Rep. 395); as to the description of realty, Stewart v. Stewart, 96 Ia. 620 (65 N. W. Rep. 976); as to when a devise includes after acquired realty, Bedell v. Fradenburg, 65 Minn. 361 (68 N. W. Rep. 41); as to when a fee is created, Gaskins v. Hunton, 92 Va. 528 (23 S. E. Rep. 885); as to the creation of a personal trust, Baker v. McAden, 118 N. C. 740 (24 S. E. Rep. 531); as to the creation of a tenancy in common, McCord v. Whitehead, 98 Ga. 381 (25 S. E. Rep. 767); as to when afteracquired realty passes, Webb v. Archibald, 128 Mo. 299 (34 S. W. Rep. 54); as to when a remainder is "accelerated," Latta v. Brown, 96 Tenn. 343 (34 S. W. Rep. 417; 31 L. R. A. 840).

Sec. 984. Devises and bequests in lieu of dower. A widow electing to take an annuity, given by her husbands'

will in lieu of dower, which does not exceed her dower interest in value has preference over the creditors of the estate. Green v. Saulsbury, 6 Del., Ch. 371 (33 Atl. Rep. 623). Where a widow having the right to take the provision made for her by her husband's will and also her distributive share, under Iowa Code, § 2542, enters into an agreement with his executors and the legatees under the will whereby she accepts payment from them of a specified sum in lieu of her distributive share, the effect of such agreement and payment is to vest in the estate, for the benefit of the devisees and legatees other than the widow, all right to realty and other property which she might have claimed. Baldwin v. Hill, 97 Ia. 586 (66 N. W. Rep. 889). It is held that a devise by a testator to his widow when accepted by her, does not defeat her right to dower unless the intent of the testator, that the devise shall be in lieu of dower is shown by a declaration of the will to that effect, or is clearly deducible from its terms; as where it appears that a claim for dower would be incompatible with the will and that to allow it would defeat some provision of the will. In re Franke's Estate, 97 Ia. 704 (66 N.W. Rep. 918). The widow's consent to take under the will may be presumed from her acceptance of property devised. In re Franke's Estate, 97 Ia. 704 (66 N. W. Rep. 918). A widow can elect to take partly under the law and partly under the will. Wis. Rev. Stat., §§ 2171, 2172, applied. Melms v. Pabst Brewing Co., 93 Wis. 140 (66 N. W. Rep. 244). Where a widow takes possession of land devised to her in lieu of the estate which she would take under the law, and exer cises dominion thereover for nearly ten years in accordance with the character of the estate given by the will, she will be considered as having elected to take under it. Wilson v. Wil son, 145 Ind. 659 (44 N. E. Rep. 665).

Sec. 985.

Conditions in restraint of marriage. It is held that a condition of a devise in restraint of a second marriage is valid. Herd v. Carton, 97 Tenn. 662 (37 S. W. Rep. 551; 37 L. R. A. 731). The court say: "It is laid down as a general proposition by all the authorities that conditions in general restraint of marriage are void; but, like all other general propositions, this must be understood in refer

ence to its application and to its exceptions. It is only literally true when considered without respect to either. One of the exceptions recognized by the general current of authority, and by the almost universal concurrence of modern judicial opinions, is that such a condition in restraint of marriage does not extend to the case of a second marriage. The principle itself was borrowed from the civil law, in which widows, as observed by Lord Thurlow in the principal case on that subject, were excepted from the Novels (Barton v. Barton, 2 Vern. 308); and this exception has been continued throughout modern English and American authorities. Further, on this question, Mr. Beach in his work on the Law of Wills (§ 234) says: The present state of the law as regards conditions in restraint of the second marriage of a woman is this; that they are exceptions to the general rule that conditions in restraint of marriage are void, and the annunciation of that law has been gradual. In the first instance, it was confined to the case of the testator being the husband of the widow. In the next place it was extended to the case of a son making a will in favor of his mother. Then came the case of Newton v. Marsden, 2 Johns. & H. 356, decided in 1862, in which it was held to be a general exception, by whomsoever the request may have been made. Allen v. Jackson, 1 Ch. Div. 399.' The whole subject will be found discussed by Mr. Beach, in §§ 233-237; in Schouler, Wills, § 603; Story Eq. Jur., §§ 276291; in Pritch. Wills, §§ 155-160; and in the case of Scott v. Tyler, 2 White & T. Lead. Cas. Eq. 429-512, and note. The leading Tennessee cases on the general subject are Hawkins v. Skeggs' Adm'r, 10 Humph. 31; Hughes v. Boyd, 2 Sneed 512; Duncan v. Phillips, 3 Head 417. They are not in antagonism to the exception now discussed, and rather lean to the validity of conditions in restraint of marriage, generally, of the widow, and to the power of the testator to terminate the enjoyment of any estate devised, whether these provisions be in the form of limitations or conditions.”

Sec. 986. Miscellaneous notes on wills. A devise to the testator's "nephews" does not give any estate to an illegitimate nephew not specially named although he could inherit property from the testator under the statute of descent.

Lyon v. Lyon, 88 Me. 395 (34 Atl. Rep. 180). Where a will devises land to a trustee with discretionary power to convey to a third party, no title is created in such third party by the will. All of his title or right depends upon the conveyance of the trustee. Crist v. Schank, 146 Ind. 277 (45 N. E. Rep. 190). "A specific devise of land, mortgaged by the testator to secure his own debt, prima facie imports an intention that the debt shall be satisfied out of the general personal assets." Turner v. Laird, 68 Conn. 198 (35 Atl. Rep. 1124). Citing, Hewes v. Dehon, 3 Gray 205.. Particular will construed and held not to confer a power of sale upon the executor. Smalley v. Smalley, N. J. Eq. (35 Atl. Rep. 374).

Where a testator makes an absolute devise he can not limit the estate thus given by any recommendation or request as to the disposition of it by the devisee. Taylor v. Brown, 88 Me. 56 (33 Atl. Rep. 664); In re Bellas' Estate, 176 Pa. 122 (34 Atl. Rep. 1003). There may be an ademption of a bequest in a will by a conveyance of land to the legatee prior to the testator's death, where such appears to be the manifest intention of the testator. Carmichael v. Lathrop, 108 Mich. 473 (66 N. W. Rep. 350). One cannot take a benefit under a I will and at the same time defeat the provisions of the instrument, but must make his election. Hyatt v. Vanneck, 82 Md. 465 (33 Atl. Rep. 972). The word "lend" when applied to real estate means the same as "give," "bequeath" or "devise." Holt v. Pickett, 111 Ala. 362 (20 So. Rep. 432).