with her contingent estate under the statute, such acceptance could not operate as a relinquishment of her interest and, under this section, she and the child take equally; Beshore v. Lytle, 114-11.

2490. When all to husband or wife. A husband and wife united in conveying certain real estate to M., in trust, to be immediately conveyed by the latter to the wife, in lieu of all her interest in the other lands then owned or afterward to be acquired by the husband, "as her jointure in her said husband's lands for ever." On the same day M. executed and delivered to the wife a deed for the real estate described. Some years later the husband died, the owner of other real estate, and leaving him surviving neither children, nor father or mother, but, leaving brothers and sisters of the half blood. The deeds were intended by the parties to operate as a jointure; they, therefore, affect the rights of the wife as widow only and under this section, as against the brothers and sisters of the half blood, she takes, as heir, the whole of the estate of which the husband died seized; Glass v. Davis, 118-593.

If a widow refuse to accept the provision made for her by her late husband's will, and elects to take under the law, she takes one-third of all his lands in fee, and, if he leaves no surviving child, father or mother, she, also, takes any portion of his estate left undisposed of by will, and no more; Morris v. Morris, 119-343.

2491. Widow's rights in real estate-Petition of an administrator for the sale of real estate for the payment of debts. An administrator is allowed to sell land for the purpose of making assets only in case of necessity. His petition for an order of sale must set forth facts clearly showing that such necessity exists. In the case at bar the petition showed that the only claim for which it was necessary to sell the realty was that of the widow's award and that there was a will. In such case, to show a necessity for a sale, the petition should show, by positive averment, that the widow has made an election as to taking under the will; an averment that she has not done so, leaves in doubt the course she will pursue, while the necessity of resorting to the land to pay her claim, depends on her course in respect of that claim; Renner v. Ross, 111-270. On the death of the husband, the surviving wife - except as otherwise limited - is entitled to one-third of all the real estate of which her husband may have been seized in fee simple during the marriage and in the conveyance of which she may not have joined, and, also, of all real estate in which the husband had an equitable interest at the time of his death. She can not be deprived of that right, except by some act of her own. In other words, under this section, the wife, on the death of her husband, may recover her interest in certain real estate, although, at the time of his death, the husband may have had but an equitable interest, or may have had no title, having conveyed it away; Elliott v. Cale, 113-391.

If it plainly appears that it was a testator's purpose, by his disposition of his entire estate, to dispose of property which the law casts on his widow and to deprive her of the $500 to which she is entitled by law, and the widow has accepted a testamentary provision made for her, such acceptance is a confirmation of the testamentary disposition and waives her right under the law; Hurley v. M'Iver, 119-55.

A widow who elects to take under the will of her late husband and not under the law takes the property devised or bequeathed to her subject to sale, if necessary for the payment of debts of the estate. A note executed by her to secure the payment of such a debt, which is thus a charge on the property devised or bequeathed to her, is supported by a good and sufficient consideration. The liability on the note is not changed by subsequent proceedings purporting to release her from her election to take under the will; Kayser v. Hodopp, 116-430.

2491. Widow's rights in real estate. By this section "a surviving wife is entitled-except as in section 2483 excepted, to one-third of all the real estate of which her husband may have been seized in fee simple, at any time during the marriage, and in the conveyance of which she may not have joined in due form of law." A married man, after receiving a conveyance of land, became insane. His guardian sold the land to pay unpaid purchase money and other of his ward's debts; the proceeds remaining after the payment of such indebtedness were reinvested in other lands. (a) The special finding showed that the husband was insane and that the land was conveyed, on the sale thereof, by his guardians: the presumption is raised that the wife did not join in the guardian's deed, she not being authorized, by statute, so to do. (b) The sale of the land to pay the unpaid portion of the purchase money due on it and other debts of the husband did not bar the widow's interest in the land on the death of her husband. She was entitled to one-third thereof. (c) She was not entitled, however, to

any interest in the increased value of the land occasioned by the valuable and lasting improvements made by the purchaser between the date of the guardian's sale and the death of her husband; Davis v. Hutton, 127-483.

2493. Widow's rights. On the death of a husband an equity intervenes in favor of his widow to have all the personal property of her deceased husband and the proceeds of his real estate, to which she is not entitled under the law, applied to the payment of the liens on the lands of which he died seized. So, where the husband having made a contract for land, dies, leaving a part of the purchase money unpaid, the widow is entitled to her statutory interest therein if the land not set off to her is sufficient to pay the unpaid consideration. A mortgage executed by a husband on his land, in which the wife joined, to secure his debt in no manner affects her rights in other lands belonging to her husbind. If the husband die holding lands for which he has contracted, but not paid for, and a portion of which he has mortgaged to a third person, his wife joining in the mortgage, and, as widow, she, by proper proceedings, has her interest set off to her from a portion of the land not mortgaged, the mortgagee can not, as against the widow, compel the person holding the purchase money lien to resort to the land so set off to her before selling the land covered by the mortgage, and if the land not set off to her is sufficient to pay the vendor's lien, she holds free from the liens of both vendor and mortgagee; Bowen v. Lingley, 119-561.

2495. Widow's rights, in case of mortgage for purchase money. So long as a mortgage executed by the husband alone for the purchase money of real estate is in full force and not barred by the statute of limitations as to the husband it is in full force against the wife. Neither the six nor the fifteen years' statute of limitations bars an action to foreclose a mortgage against the wife in such case. The mortgage lien is not barred until twenty years have elapsed from the time the cause of action has accrued; Leonard v. Binford, 122-201.

2497. Adulterous husband. On a sale in foreclosure of a mortgage on the husband's land, in which mortgage the wife did not join, the inchoate right of the wife is transformed into an absolute and vested right (2508). The title she takes, then, is full and perfect and she becomes, in law and fact, the owner of an estate in the land as complete as if she had acquired the title in any other mode than through her husband. In the event of her death if the husband is living in adultery at that time this section at once applies to the estate she acquired, and it commands that the husband shall take no part of that estate. The provision of section 2510 that land acquired by the wife on judicial sale of the husband's land shall descend to the husband must be construed to intend that the husband may take the wife's land acquired through him, in all cases where he is capable of taking; it can not be so construed as to allow him to take where a positive statute declares that he shall take no part of her estate; Bradley v. Thixton, 117-256.

2505. Widow's election as to devise. According to the imperative language of this statute, if there be a will in which lands are devised to a widow "she shall take under the will, unless she shall make her election" in the manner therein prescribed within one year. The right of a widow to take an interest in the real estate of which her husband died seized is a statutory right, and where provision is made for her by the will of her late husband, her right to take under the law depends on conditions precedent, to be performed by her within a year. The renunciation of the will and the election to take under the statute must be made in substantial compliance with the statute which confers the right. In all cases where there is a will the widow is conclusively bound by it, unless she renounces its provisions and elects in the manner pointed out in the statute. The right to elect is strictly personal, which can be exercised by the widow alone, and although she die before the time for election has expired, in the absence of a statute authorizing it to be made afterward by her heirs and representatives, the right of election expires with her. This is so notwithstanding the fact that the widow, being ignorant of the statutory requirement, had, in fact, determined to take under the law, and in pursuance of that determination had taken possession of one-third of the land left by her husband; Fosher v. Guilliams, 120-173. This section requires a widow to elect between her statutory rights in her late husband's lands and any testamentary provision made for her in lieu thereof. This applies, however, only to her interest in his lands and has no application to her statutory allowance of $500 ($ 2269). No statute requires her to select as to that allowance. Where a testator, by his will, makes a specific provision for his widow, but does not declare that such provision is to be in lieu of that made by the law, the widow's right

to the $500 award is not waived by her acceptance of the provisions of the will, unless the assertion by the widow of the right to take both under the law and under the will will defeat the purpose of the testator, as shown by the disposition which he has made of the residue of his property. A general disposition of all the residue of his property, by residuary devise or bequest, not purporting to be in lieu of the widow's absolute claim, is not enough to compel her to elect between the provision made for her by the will and her absolute claim; she is entitled to both; Shipman v. Keys,

127-354.

2508. Wife's right upon judicial sale. A married woman who, under this section, has had her interest in her husband's real estate, which has been sold on execution, set off to her, occupies a relation analogous to that of surety as to prior mortgages on the whole tract in which she has joined. The two-thirds of the land taken by the purchaser at the execution sale is charged with the payment of all such prior incumbrances, provided it is of sufficient value. G. purchased at a sheriff's sale under execution a tract of land, sold as the property of B., subject to the lien of two mortgages executed by B. and his wife. Afterward the one-third interest of the wife of B., under this section, was set off to her. Later, the title of G. having matured he purchased and had assigned to him one of the prior mortgages, which he caused to be foreclosed, taking the decree in his own name. The other mortgage was foreclosed and the judgment and decree were purchased by and assigned to G. Both decrees adjudged that G.'s interest in the land should be first sold for the payment of the debts, and his interest exceeded in value the amount of both judgments. By the purchase of the mortgage debts by G. they became extinguished as to B.'s wife and no longer operated as liens upon her interest in the land; when he paid off the existing mortgage debts he paid off what, in legal effect, he agreed to pay for the land; i. e., the amount of his bid and the prior incumbrances; Bunch v. Grave, 111-352.

The inchoate interest of the wife in the real estate of her husband, sold on execution against him, vests and becomes absolute in her on the day of sale; on her death shortly after the sale her husband, to whom such interest descends, may maintain a suit for partition, against the purchaser at the sheriff's sale; Elliott v. Cale, 113–399. In all cases of judicial sales of real estate in which the wife has an inchoate interest by virtue of her marriage, which is not ordered to be sold or barred by virtue of such sales, that interest becomes absolute and vested in her, by virtue of such sales, whether at the time thereof the husband had the legal title or not, at least, in cases where the real estate is sold in satisfaction of judgment or other liens, which attached when the husband owned the real estate and grew out of the debts owed by him; Elliott v. Cale, 113-392.

The provision of this section which provides that the wife's inchoate interest shall become absolute and vested in her "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" etc., must be considered in connection with that which precedes it and so should be construed as fixing the time when the wife's inchoate interest becomes absolute and vested in her, rather than as fixing the character of title the husband must have in the real estate at the time of the judicial sale in order that the wife's inchoate interest may become absolute and vested in her under the provisions of the section; Elliott v. Cale, 113-394.

A judgment was recovered against a married man, an execution issued and was levied on an undivided two-thirds of a certain piece of real estate which he owned. At the date of the rendition of the judgment, the issuing and levy of the execution and the sale thereunder his wife was living. The title of the purchaser at the sale can not be successfully attacked, in a collateral proceeding, by a judgment creditor of the husband, whose judgment was recovered on the same day and who subsequent to the first sale levied on all the land and became the purchaser under that levy. Whether the sale of the undivided two-thirds of the land was or was not strictly regular is unimportant. It covered the judgment debtor's actual interest and is not absolutely void as against a judgment creditor. A judgment creditor can not successfully object to a sale because of irregularities; Ribelin v. Peugh, 126-217.

Where a judgment creditor redeems from a sale of a husband's real estate, made under a decree, foreclosing a prior mortgage in which the wife joined, and, afterward, procures a sale to be made on venditioni exponas issued on his judgment and obtains the sheriff's deed to the property under the latter sale, the wife is not entitled to have one-third of the property set off to her, as contemplated by this section; but, under

section 773, the last sale is to be regarded as having been made under the original decree and the title acquired thereby relates back to the date of the mortgage; Patterson v. Rosenthal, 117-85.

The lands of a bankrupt were sold under an order of court made in a bankruptcy proceeding, during the year 1878. The wife of the bankrupt became the owner of an absolute interest in such lands on the day of the date of such sale and, under the then existing laws, she could not lose title in such lands by estoppel; Powers v. Nesbit, 127-498; Ind'polis v. Patterson, 112-344.

When a debtor makes an assignment under the state voluntary assignment law, the title to his real estate passes from him to the assignee on the recording of the deed of assignment. A sale of the real estate by the assignee is a judicial sale within the meaning of this statute; Elliott v. Cale, 113-393.

A woman having joined her husband in a mortgage on his land to secure his debt, which land is sold under decree of foreclosure, can not maintain an action against him, after divorce decreed, for damages, treating her inchoate interest as so much security funds taken to pay his debts; Tennison v. Tennison, 114-425.

2509. When not applicable. The wife, by virtue of a judicial sale of her husband's real estate, takes no vested interest in the excess above $20,000, as to which her rights are left as they were prior to the passage of this statute (1875) and depend on her surviving the husband. In so much, however, of the real estate as shall not exceed $20,000 in value she takes one-third in fee simple, which, however, is liable to be reduced to one-fourth in a suit brought against her by the creditors for that purpose, unless the whole of the property sold does not exceed in value $10,000; Elliott v. Cale, 113-406.

2510. Who inherits from wife. This section of the statute of 1875 relating to judicial sales of the husband's property, in providing that land acquired by the wife thereunder shall descend to the husband must be construed to intend that the husband may take the wife's land acquired through him, in all cases where he is capable of taking. It can not be so construed as to allow him to take where a positive statute (2497) declares that he shall take no part of her estate; Bradley v. Thixton, 117-257. 6813. When personal property goes to widow and child. This statute, of 1889, provides that where a man marries a second wife and has no children by her and dies, leaving children by his first wife, the interest of such second and childless wife in the lands of the decedent shall be, only, a life estate and the fee thereof shall, at the death of the husband, vest in such children, subject only to the life estate of the widow. (1) The portion of the land in which the widow takes a life estate is free from the demands of creditors and is not subject to be made assets, by sale, for the payment of debts. (2) Where all the lands of one deceased are, with the consent of the widow, sold to make assets she is entitled to the value of her life estate out of the proceeds of the portion subject to the life estate; the children are entitled to the remainder of the proceeds of such portion; Windell v. Trotter, 127-333.

Prior to the enactment of this statute a childless widow took an interest equal to the undivided one-third in fee simple in her deceased husband's real estate. During her life time the children of her husband by a former wife had no vested estate in the property which descended to her, but occupied precisely the attitude of other expectant heirs toward the property of their ancestor, except the childless widow had no power to defeat the expected inheritance. By the express terms of section 6816, the provisions of this statute do not apply to any case where the second and childless wife had died and the estate had become vested in the heirs of the deceased husband before the act took effect; Habig v, Dodge, 127-34.

AN ACT prescribing the duties of clerks and judges of circuit courts in relation to guardianships. [Approved March 9, 1889; in force May 10, 1889; S., 1889, p. 282.

6818. Guardianship docket - Contents. SEC. I. Be it enacted by the General Assembly of the State of Indiana, That it shall be the duty of the clerk of the circuit court, in each county of this state, to enter upon a proper docket, to be provided for that purpose at the expense of the county, to be called guardianship docket, a complete list of all the guardianships pending in such county, showing the date of issuing letters, name and residence of guardian, amount of bond, names and residences of securities on the bond, date of last amount of funds in hand of guardian, as shown by said last report, and condition of sureties on bond, as to solvency or insolvency, at the commencement of each regular term of the circuit court hereafter, and also whether or not the sureties have incumbered or disposed of their real estate since the execution of the bond.

6819. Docket, call of- Sureties doubtful, new bond or removal. §2. It shall be the duty of the judge of the circuit court in each county in this state, at each regular term of said court, to cause the guardianship docket to be called through in open court and to inquire carefully into the solvency or insolvency of the sureties on each bond, and where it shall appear that the bond of any guardian is insufficient to secure the funds in his hands, or that any guardian has failed to make a report for two years as required by law, it shall be the duty of such court to cause notice to be served upon such guardian, requiring said guardian to appear in open court and file a new bond to the approval of the court within ten (10) days from the service of said notice, when such bond is so found to be insufficient, or to make proper report in such trust within such time as the court may fix, to be named in the notice, and if such guardian shall fail to file said new bond within said ten (10) days from the service of said notice or shall fail to make said report within such time as said court may order, or show cause to the satisfaction of the court why the same should not be done, said court shall remove said guardian from said trust: Provided, that if it shall appear that any guardian has become a non resident of the state of Indiana so that the notice above provided for can not be served upon him, it shall be the duty of such court to remove said guardian without notice. 6820. Clerk's docket fee. § 3. The clerk of said circuit court shall be allowed a fee of twenty-five cents in each estate for entering the same upon said guardianship docket, and ten cents for each term any guardian