A widow has an interest in lands in which the husband had an equitable interest at the time of his death. Ketchum v. Schicketanz, 73 Ind. 137.

[1879 S., p. 123. In force May 31, 1879.]

2641. (2484.) Widow remarrying, can not alienate.-18. If a widow shall marry a second or any subsequent time, holding real estate in virtue of any previous marriage, and there be a child or children or their descendants alive by such marriage, such widow may not, during such second or subsequent marriage, with or without the assent of her husband, alienate such real estate; and if, during such marriage, such widow shall die, such real estate shall go to her children. by the marriage in virtue of which such real estate came to her, if any there be: Provided, however, That such widow and her living husband may alienate such real estate, if her children by the marriage in virtue of which such real estate came to her shall all be of the age of twentyone years and join in such conveyance: And provided, further, That in case there be no child or children or their descendants by the marriage in virtue of which such real estate came to such widow, then, in such case, such widow may, during such second or subsequent marriage, by her second or subsequent husband joining in the conveyance thereof, alienate such real estate in fee-simple.

See section 2671.

When a widow remarries, she is prevented from conveying or mortgaging lands received by her by virtue of an first marriage, so long as such second marriage continues, and there are children of the first marriage. Vinnedge v. Shaffer, 35 Ind. 341; Mattox v. Hightshue, 39 Ind. 95; Bowers v. Van Winkle, 41 Ind. 432; Griner v. Butler, 61 Ind. 362; Edmonson v. Corn, 62 Ind. 17; Avery v. Akins, 74 Ind. 283; McCullough v. Davis, 108 Ind. 292. /4/ Ind 528

If such widow contracts the sale of such lands before her second marriage, and puts the purchaser in possession of the lands, she may be compelled to convey the lands, or she may voluntarily convey the same. Newby v. Hinshaw, 22 Ind. 334; Deweese v. Reagan, 40 Ind. 513.

When the husband leaves only adopted children, the remarriage of the widow does not prevent her from conveying lands that she received from the husband. Barnes v. Allen, 25 Ind. 222.

If a conveyance is made contrary to the provisions of this section the widow may recover possession of, and have her title quieted to, the lands conveyed. Knight v. McDonald, 37 Ind. 463; Connecticut, etc., Co. v. Athon, 78 Ind. 10.

If there are no children or descendants thereof by the marriage in virtue of which the real estate was acquired, the widow may convey such lands during a subsequent marriage. McKinney v. Smith, 106 Ind. 404.

A widow who remarries may, during such marriage, join with the children of the first marriage in conveying lands received by her by such marriage to one of such children. Fugate v. Payne, 130 Ind. 281.

Such widow may, during a second marriage, have her interest in such lands set off to her in severalty. Klinesmith v. Socwell, 100 Ind. 589; Christy v. Smith, 80 Ind. 573. If such lands are sold in proceedings for partition such widow is entitled to have her portion of the proceeds of sale paid to her unconditionally. Small v. Roberts, 51 Ind. 281; Klinesmith v. Socwell, 100 Ind. 589.

When such widow remarries and such marriage is for any cause dissolved, the restriction of alienation is removed. Piper v. May, 51 Ind. 283.

Such widow may, while unmarried, convey such lands, and after her remarriage have the lands reconveyed to her and hold the same free from any restriction against alienation thereof. Nesbitt v. Trindle, 64 Ind. 183.

If such widow remarries and has children by the second marriage, and dies unmarried, leaving children by both marriages, the lands acquired by the first marriage will descend to all her children. Teter v. Clayton, 71 Ind. 237.

Consent by the children of the first marriage to a conveyance by the widow during a second marriage, will not estop such children from claiming the lands after the death of the widow. Avery v. Akins, 74 Ind. 283.

Lands that a widow is prohibited from conveying can not be sold on an execution against her, and she may enjoin such sale. Schlemmer v. Rossler, 59 Ind. 326; Miller v. Noble, 86 Ind. 527.

If such widow dies during the second marriage, her husband takes no interest in such lands as against the children of the first marriage. Mathers v. Scott, 37 Ind. 303. On the death of such widow leaving children by her first marriage, the lands acquired by her by such marriage can not be sold to pay her debts. Davis v. Kelly, 132 Ind. 309.

2642. (2485.) What to husband, from wife.-22. If a wife die testate or intestate leaving a widower, one-third of her real estate shall descend to him, subject, however, to its proportion of the debts of the wife contracted before marriage: Provided, If the wife shall have left a will, such widower may elect to take under the will, instead of this or any other law of descents of the state of Indiana, which election. shall be made within ninety days after said will has been admitted to probate in this state and in the same manner as widows are now required to elect in such cases.

(As amended, Acts 1891, p. 71. In force March 4, 1891.)

A husband is entitled to one-third of the real and personal estate of his deceased wife. Noble v. Noble, 19 Ind. 431.

If lands are devised to a married woman and she dies before the testator, her husband will not take any interest in such lands. Prather v. Prather, 58 Ind. 141.

If a married woman dies before her father her husband will not take any interest in the lands that would have descended to her if alive. Graham v. Babcock, 109 Ind. 205. Consent by a husband to his wife making a will can not deprive him of his interest in her estate. O'Harra v. Stone, 48 Ind. 417; Roach v. White, 94 Ind. 510.

A husband will not inherit any portion of the lands acquired by his wife by a previous marriage, and which she was prohibited from conveying during her last marriage. Mathers v. Scott, 37 Ind. 303.

If a married woman holds land in fee subject to a contingency, on her death her husband will inherit one-third of the land subject to the same contingency. Greer v. Wilson, 108 Ind. 322.

If a man abandons his wife and makes no provision for the support of her and their children, he will not inherit any portion of her estate. Hinton v. Whittaker, 101 Ind. 344.

If a husband is living in adultery at the death of his wife, he will take no interest in her estate. Bradley v. Thixton, 117 Ind. 255.

Unless an election is made to take under the will or the law within the time prescribed by statute, the husband's rights will be governed by the will. Fosher v. Guilliams, 120 Ind. 172.

If a wife makes provision for the husband by will he may take under the law or the will, but he can not take under both. Clark v. Clark, 132 Ind. 25.

2643. (2486.) When widow and one child.-23. If a husband die. intestate, leaving a widow and one child only, his real estate shall descend one-half to his widow and one-half to his child.

If in such case the widow remarries and dies during the marriage, her interest in such real estate will descend to the child of the first marriage. Mathers v. Scott, 37 Ind. 307.

On the death of such widow unmarried, her portion of such lands will descend to such child and her children by a former marriage in equal portions. McClanahan v. Trafford, 46 Ind. 410.

This section applies to an adopted child of the husband the same as a natural child. Isenhour v. Isenhour, 52 Ind. 328.

This section is only applicable when the husband dies intestate, but it applies to all lands not devised by will although a will is made. Collins v. Collins, 126 Ind. 559.

If a will imposes a trust upon the widow not inconsistent with her interest in the lands, and she accepts the trust, she will still retain such interest. Beshore v. Lytle, 114 Ind. 8.

2644. (2487.) When personal property goes to widow and child.— 24. If a man dies intestate leaving a widow and child or children, not exceeding two, the personal property of such intestate shall be equally divided among the widow and children, the widow taking an equal share with one child, but if the number of children exceed two, the widow's share shall not be reduced below one-third of the whole: Provided, That if a man marry a second or subsequent wife and has by her no children, but has children alive by a former wife, the interest of such second or subsequent childless wife in the lands of the decedent shall only be a life-estate, and the fee of the same shall at the death of such husband vest in such children, subject only to the life-estate of the widow.

(As amended, Acts 1889, p. 430. Ell. Supp., section 423. In force March 11, 1889.) A second childless wife has the same interest in the personal estate as the widow of any other marriage. Sigler v. Hooker, 30 Ind. 386.

Under this section, prior to its amendment, such second or subsequent wife on the death of the husband without issue by her, but leaving issue by a former wife, took a fee-simple interest in the lands of the husband, and on her death such interest descended to the children of the husband. Thorp v. Hanes, 107 Ind. 324; Utterback v. Terhune, 75 Ind. 363; Hendrix v. McBeth, 87 Ind. 287; Flenner v. Benson, 89 Ind. 108; Montgomery v. McCumber, 128 Ind. 374; Habig v. Dodge, 127 Ind. 31.

On the death of such second childless wife the lands she inherited from the husband descended to the children of the husband free from the claims of the husband's creditors. Louden v. James, 31 Ind. 69; Flenner v. Benson, 89 Ind. 108; Bryan v. Uland, 101 Ind. 477; Armstrong v. Cavitt, 78 Ind. 476.

Under this section as amended in 1889, neither the life-estate taken by the widow, nor the fee that descends to the children, is subject to sale for the payment of the debts of the husband. Windell v. Trotter, 127 Ind. 332.

An adopted child is not a child by a “previous wife" within the meaning of this section. Isenhour v. Isenhour, 52 Ind. 328; Davis v. Fogle, 124 Ind. 41.

If such second wife has a child or children by the husband, she takes a fee in his lands on his death. Smith v. Smith, 23 Ind. 202. See Scott v. Silvers, 64 Ind. 76; Williams v. Venner, 53 Ind. 396; Heavenridge v. Nelson, 56 Ind. 90.

Such second childless wife has only a life-estate in the lands of the husband in

which his title was divested during his life, and when he left children by a previous wife. Hendrix v. Sampson, 70 Ind. 350.

Such second wife has a fee-simple interest in lands conveyed by the husband during his life. Slack v. Thacker, 84 Ind. 418; Hendrix v. McBeth, 87 Ind. 287.

If the title to the husband to his lands is divested by a judicial sale his second childless wife becomes vested with a fee-simple interest, although there may be children of the husband by a previous wife. Caywood v. Medsker, 84 Ind. 520.

If the interest of such widow is set off to her, in proceedings in partition, the rights of the children of the husband by a former wife will not be affected thereby. Reagan v. Sheets, 130 Ind. 185.

The children of the husband by a former wife, prior to the amendment of this section, held no interest in such lands during the life of the second wife that they could convey, nor could they enjoin her from committing waste on the lands. Bryan ɛ. Uland, 101 Ind. 477; Gwaltney v. Gwaltney, 119 Ind. 144.

If such second wife has an only child which dies before the death of the husband, the land that descends to the widow will, on her death, descend to the children, or the descendants of the children of the husband by a former marriage. Scott v. Silvers, 64 Ind. 76.

[Acts 1889, p. 430. In force March 11, 1889.]

2645. (E. S. 424.) Conveyance-Children estopped.-2. In all cases where during the life of the second or subsequent childless wife, and after the death of the husband, the children of the latter by former wife have executed or attempted to execute conveyances in fee to all or any part of the lands affected by the life-estate and have received full payment therefor, or where all or any part of such lands have been conveyed for a full consideration by the guardians of any of such children, such conveyances shall, at the death of such second or subsequent childless wife, be held to convey the interest of such children in such lands that would descend to them through such second or subsequent childless wife, and shall estop such children or their heirs. from hereafter claiming such interest.

Prior to the enactment of this section the children of the former marriage were not estopped by quitclaim conveyances made by them during the life of the second wife. Bryan v. Uland, 101 Ind. 477.

2646. (E. S. 425.) Conveyance by wife and children-Estoppel.3. In all cases where, after the death of such husband, the second or subsequent childless wife and the children of the decedent by a former wife, or their guardians, have attempted to dispose of the life-estate by conveyances, one to the other, of certain parts of the lands of said decedent, such conveyances shall be held to be valid and shall estop all the parties or their heirs from hereafter claiming any interest so conveyed: Provided, That this act shall not in any way affect any suit or suits now pending in any courts of this state or the rights of any parties thereto.

2647. (E. S. 426.) When act applies.-4. The provisions of this act shall not apply in any case where the second childless wife has died and the estate become vested in the heirs of the deceased husband.

[Acts 1891, p. 404. In force June 3, 1891.]

2648. Widow's interest in personal estate.-1. If a man die testate

leaving a widow, one third of his personal estate shall descend to said widow, subject, however, to its proportion of the debts of said decedent: Provided, however, That nothing in this act shall be construed to reduec the interest which the law now gives a widow in the estate of a deceased husband: And provided, further, That such widow may elect to take under the will of said decedent instead of this or any other law of descent of this state, which election shall be made within ninety days after said will has been admitted to probate in this state, and in the same. manner as widows are now required by law to elect.

If no election is made as required then the will controls as to the rights of the widow. Fosher v. Guilliams, 120 Ind. 172.

[Acts 1853, p. 55. In force July 24, 1853.]

2649. (2488.) Wife's personal property.-5. The personal property of the wife held by her at the time of her marriage or acquired during coverture by descent, devise, gift or in any other manner, shall remain her own property to the same extent and under the same rules as her real estate so remains, and on the death of the husband before the wife such personal property shall go to the wife, and on the death of the wife before the husband shall be distributed in the same manner as her real estate descends and is apportioned under the same circumstances: Provided, If the wife shall have left a will the surviving husband may elect to take under the will, instead of this or any other law of descent, of the state of Indiana, which election shall be made within ninety days after said will has been admitted to probate in this state and in the same manner as widows are now required to elect in such cases.

(As amended, Acts 1891, p. 72. In force March 4, 1891.)

The personal property of the wife held at her marriage, and that acquired during coverture by descent, devise, or gift, remains her separate property. Wilkins v. Miller, 9 Ind. 100; Scott v. Scott, 13 Ind. 225; Bellows v. Rosenthal, 31 Ind. 116.

The personal property of a married woman in another state will be presumed to belong to the husband. Smith v. Peterson, 63 Ind. 243.

If personal property of a married woman in another state is brought into this state it will remain her separate property. Schurman v. Marley, 29 Ind. 458.

Personal property purchased by a married woman with proceeds of her real estate belongs to her exclusively. Johnson v. Runyon, 21 Ind. 115; Ireland v. Webber, 27 Ind. 256.

Under the statute of 1853, a married woman could only transfer her personal property with the consent of her husband. Collier v. Connelly, 15 Ind. 141; Moreau v. Branson, 37 Ind. 195; Baker v. Armstrong, 57 Ind. 189; Paulman v. Claycomb, 75 Ind. 64. Property acquired by the earnings of the wife belonged to the husband under the statute of 1853. Yopst v. Yopst, 51 Ind. 61.

A life insurance policy is personal property that will descend under this section. Harley v. Heist, 86 Ind. 196; Hutson v. Merrifield, 51 Ind. 24.

If no election is made as required by the statute, then the will controls as to the rights of the husband. Fosher v. Guilliams, 120 Ind. 172.

[1 R. S. 1852, p. 248. In force May 6, 1853.]

2650. (2489.) When from husband or wife to survivor and parents.-25. If a husband or wife die intestate, leaving no child, but