husband, she shall take under the will of her said husband, unless she shall make her election whether she will take the lands so devised, or the provision so made, or whether she will retain the right to onethird of the land of her late husband; but she shall not be entitled to both unless it plainly appear by the will to have been the intention of the testator that she should have such lands, or pecuniary or other provision thus devised or bequeathed in addition to her rights in the lands of her husband. Such election shall be in writing, signed by such woman and acknowledged before some officer authorized to take the acknowledgement of deeds, and shall be made within one year after said will has been admitted to probate in this state, and be filed and recorded in the office of the clerk of the circuit court in which such will is probated and recorded by such clerk in the record of wills, reference being made from such record to the book and page in which the will is recorded and from the record of the will to the book and page in which such election is recorded.

(As amended, Acts 1885, p. 239. Ell. Supp., section 426. In force July 18, 1885.) Prior to the amendment of this section lapse of time did not affect the right of a widow to take under the law. Piercy v. Piercy, 19 Ind. 467; Wilson v. Moore, 86 Ind. 244.

Prior to the amendment of this section a widow would take under the law unless she affirmatively elected to take under the will. Leach v. Prebster, 39 Ind. 492; Wetherill v. Harris, 67 Ind. 452.

Under this section 'as amended, the widow must elect as therein provided to take under the law, or her rights will be governed by the will. Fosher v. Guilliams, 120 Ind. 172.

If the will declares that the provisions made for the widow is in lieu of the rights given her by law, or if it is uncertain whether she is entitled to take both under the will and the law, then she must make her election. Young v. Pickens, 49 Ind. 23; Ragsdale v. Parrish, 74 Ind. 191; Wilson v. Mcore, 86 Ind. 244.

No one but the widow can make an election for her to take under a will. Eltzroth v. Binford, 71 Ind. 455; Wilson v. Moore, 86 Ind. 244; Fosher v. Guilliams, 120 Ind.

172.

The guardian of an insane woman can not make an election for her. Heavenridge v. Nelson, 56 Ind. 90.

If a widow dies within a year after probate of a will without making her election, she will take under the will under this amended section. Fosher v. Guilliams, 120 Ind. 172.

A widow can not accept the provisions of a will and also claim under the law unless it clearly appears that such was the intention of the testator. Ragsdale v. Parrish, 74 Ind. 191; Hurley v. McIver, 119 Ind. 53.

But if such intention is apparent, then she will be entitled to both. Burkhalter v. Burkhalter, 88 Ind. 368.

The acceptance of the provisions of the will does prevent the widow from taking the personal estate given her absolutely by statute, unless by her so doing the plain intention of the testator will be defeated. Loring v. Craft, 16 Ind. 110; Nelson v. Wilson. 61 Ind. 255; Whiteman v. Swem, 71 Ind. 530; Smith v. Smith, 76 Ind. 236; Shipman v. Keys, 127 Ind. 353.

If to take under the will, and also the personal estate given absolutely by statute will be plainly inconsistent with the terms of the will, then the widow can not claim both. Langley v. Mayhew, 107 Ind. 198; Hurley v. McIver, 119 Ind. 53.

As to the rights of a widow in property whereby her election to take under the law renders the will inoperative to vest title until her death, see Cool v. Cool, 54 Ind. 225; Dale v. Bartley, 58 Ind. 101; Hauk v. McComas, 98 Ind. 460; Collins v. Collins, 126 Ind. 559. If a widow declines to take under a will, and verbally agrees not to take under the law, such agreement is not binding on her. Switzer v. Hauk, 89 Ind. 73.

2667. (2506.) Reviver of rights by loss of jointure.-42. If a woman be lawfully evicted of lands assigned to her as jointure, or be deprived of provision made for her as jointure; or if a man be lawfully evicted of lands or deprived of other property conveyed to him in nature of a jointure,-which assignment, provision, or conveyance had barred her or his right in the lands of her husband or of his wife, as the case may be, then her or his right to a third of said lands shall revive and be in force.

2668. (2507.) Alienage of wife.-43. The alienage of any woman shall not bar her right to one-third of her husband's lands, if her husband was a citizen of the United States, or if, being an alien, he had complied with the laws of this state to entitle him to hold lands.

[1875, p. 178. In force August 24, 1875.]

2669. (2508.) Wife's right upon judicial sales.-1. In all cases of judicial sales of real property in which any married woman has an inchoate interest by virtue of her marriage, where the inchoate interest is not directed by the judgment to be sold or barred by virtue of such sale, such interest shall become absolute and vest in the wife in the same manner and to the same extent as such inchoate interest of a married woman now becomes absolute upon the death of the husband, whenever, by virtue of said sale, the legal title of the husband in and to such real property shall become absolute and vested in the purchaser thereof, his heirs or assigns, subject to the provisions of this act, and not otherwise. When such inchoate right shall become vested under the provisions of this act, such wife shall have the right to the immediate possession thereof; and may have partition, upon agreement with the purchaser, his heirs or assigns, or upon demand, without the payment of rent, have the same set off to her.

Since the enactment of this section a married woman has had the right to have her interest in the lands of her husband set off to her, whenever the husband was divested of his title by a judicial sale, and her interest was not sold. Taylor v. Stockwell, 66 Ind. 505; Roberts v. Shroyer, 68 Ind. 64; Ketchum v. Schicketanz, 73 Ind. 137; Richardson v. Schultz, 98 Ind. 429; Caywood v. Medsker, 84 Ind. 520; Foltz v. Wert, 105 Ind. 404; Elliott v. Cale, 113 Ind. 383.

A conveyance of lands to a register in bankruptcy is a judicial sale within the meaning of this section. Roberts v. Shroyer, 68 Ind. 64; Ketchum v. Schicketanz, 73 Ind. 137; McCracken v. Kuhn, 73 Ind. 149; Mattill v. Baas, 89 Ind. 220.

No demand for partition need be made before bringing an action under this section. McCracken v. Kuhn, 73 Ind. 149.

A wife may convey her interest in the lands and the grantee may have partition whenever the wife might have been entitled thereto. Hollanbeck v. Blackmore, 70 Ind. 234; Youst v. Hayes, 90 Ind. 413.

If a husband makes an assignment for the benefit of creditors, and his lands are sold by the assignee, his wife will be entitled to partition. Lawson v. De Bolt, 78 Ind. 563 ; Wright v. Gelvin, 85 Ind. 128; Hall v. Harrell, 92 Ind. 408.

This section applies to equitable estates the same as legal estates. Keck v. Noble, 86 Ind. 1; Shelton v. Shelton, 94 Ind. 113; Elliott v. Cale, 113 Ind. 383.

This section applies to a second or any subsequent wife without reference to there being children by either marriage. Caywood v. Medsker, 84 Ind. 520.

If the wife dies before partition is made, her heirs may maintain the action when the time arrives at which she might have maintained the same. Summit v. Ellett, 88 Ind. 227; Elliott v. Cale, 113 Ind. 383.

If two-thirds of the land is worth as much as the amount of the debt for which it was sold, the wife will be entitled to one-third without reference to the value of the land. Mansur v. Hinkson, 94 Ind. 395.

If the property sold exceeds in value $20,000, the wife can only have set off to her under this section one-third of lands equal to $20,000, in value, which amount is subject to be reduced to one-fourth in value at the suit of creditors if the lands sold exceed in value $10,000. Elliott v. Cale, 113 Ind. 383.

When a wife is entitled to partition under this section, she becomes entitled to her share of the rents accruing after the sale. Riley v. Davis, 83 Ind. 1.

This section does not apply to mortgages executed prior to the enactment thereof. Parkham v. Vandeventer, 82 Ind. 544; Pouder v. Ritzinger, 102 Ind. 571; Voltz v. Rawles, 85 Ind. 198.

Where the lien of a mechanic or a sewer assessment attached prior to the enactment of this section, it was held that a sale under such lien vested in the purchaser the entire title to the lands upon which the lien attached. Elliott v. Cale, 113 Ind. 383; Buser v. Shepard, 107 Ind. 417.

A conveyance by a commissioner of the interest of the husband in an action for specific performance will not entitle the wife to partition. Straughan v. White, 88 Ind. 242.

If the interest of the wife is sold at judicial sale and a redemption is made and a resale had, the wife is not entitled to partition. Patterson v. Rosenthal, 117 Ind. 83.

2670. (2509.) When not applicable.-2. The provisions of this act shall not apply to sales of real estate upon judgments rendered prior to the taking effect of this act; nor to any sale of real property of the value of twenty thousand dollars and over; nor to the sale of such real property of the aggregate value of twenty thousand dollars and overexcept to so much of such real property as shall not exceed in value. the sum of twenty thousand dollars.

The preceding section is not applicable to sales made on judgments rendered prior to the taking effect of such section. Westerfield v. Kimmer, 82 Ind. 365.

Such section applies to judgments rendered after the taking effect thereof upon contracts executed prior thereto. Taylor v. Stockwell, 66 Ind. 505.

For a construction of this section as to the rights of a wife where the property sold exceeds $20,000, and where it is of less than $20,000 in value and over $10,000 in value, see Elliott v. Cale, 113 Ind. 383.

2671. (2510.) Who inherits from wife.-3. If any married woman shall die, holding real property vested in her by the provisions of this act, during the existence of the marriage in virtue of which she received the same, the whole of such real property shall descend to her surviving husband; and if any woman shall marry a second or any subsequent time, holding real property vested in her by the provisions. of this act, such woman may not, during such second or subsequent marriage, either with or without the assent of her husband, alienate

such real estate; and if, during such marriage, such wife shall die, such real estate shall descend to her children by the marriage in virtue of which such real estate came to her, if any there be.

See section 2641.

When the husband inherits lands under this section, he holds the same subject to all the liens that were on the same as against the wife. Haggerty v. Byrne, 75 Ind. 499. If a husband is living in adultery at the death of his wife, he will not inherit lands under this section. Bradley v. Thixton, 117 Ind. 255.

If the wife dies before her right to have partition has arrived, her right descends to her husband and he may have partition when the purchaser's title becomes absolute. Summit v. Ellett, 88 Ind. 227.

2672. (2511.) Price on execution sale.-4. No real property in which any married woman holds such inchoate interest as is provided for in this act, liable to be sold with benefit of appraisement laws of the state, shall be sold on any execution or order of sale issued out of any court for less than four-ninths of the appraised cash value thereof, exclusive of liens and incumbrances.

[2 R. S. 1852, p. 321. In force May 6, 1853.]

2673. (2512.) Appointment.-1. The court having probate jurisdiction in each county, in term time, or the clerk thereof in vacation, shall appoint guardians of minors resident in such county, or having estate therein; and in case of conflict between two appointments in different counties, the one first made shall exclude all others and extend to all the property of the ward within this state.

See sections 2714-2724.

The domicile of the parents at their death is the domicile of an infant heir, and can not be changed during minority, of his own volition. Warren v. Hofer, 13 Ind. 167. The jurisdiction of a court over minors and the appointment of a guardian therefor can not be raised in a collateral proceeding. Dequindre v. Williams, 31 Ind. 444.

If a guardian appointed by will fails to qualify, another guardian should be appointed by the court. Davidson v. Koehler, 76 Ind. 398.