istrator may recover from the estate of the husband the $500 of personalty allowed to widows, although provision is made in such will for the widow. Welch v. Collier, 27 App. 502.

[Acts 1905, p. 201. In force March 4, 1905.]

2666a. Insane widow, election, guardian's duty.-1. That where lands. and personal property, or either, be devised or bequeathed, to a woman, or a pecuniary or other provision be made for her by the will of her late husband, in lieu of her right to lands and personal property, or either, of her husband, and such woman shall have been found to be insane and under guardianship, then the guardian of such insane woman shall within sixty days after the probate of the will file his petition in the circuit court to which he reports praying the court to determine and order whether he, as such guardian, shall elect to take for such widow the provision made for her in said will or to take the provision made for her by law, and the court shall hear evidence and determine whether it is for the best interest of such widow to take under said will or under the law, and shall so order said guardian, and said guardian shall thereupon file his written election for said widow pursuant to such order. Such election shall be in writing, signed by such guarIdian and acknowledged before some officer authorized to take the acknowledgment of deeds, and shall be made immediately after the determination and order of the court as aforesaid 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.

2669. Judicial sales, right of wife, partition.

If a mortgage executed by a husband and wife is foreclosed and the land sold the wife is entitled to one-third in value of the land out of the proceeds of such sale as against general judgment creditors of the husband when such claim of the wife was not put in issue and determined in the foreclosure proceedings. Clements v. Davis, 155 Ind. 624; Bartmess v. Holliday, 27 App. 544.

A wife may transfer her inchoate interest in the lands of her husband before his interest therein is divested and the creditors of the husband can not complain when they are not injured by such transfer. Baldwin v. Heil, 155 Ind. 682; Hig gins v. Ormsby, 156 Ind. 82.

If the lands of a husband is sold at judicial sale and his wife obtains partition, and a mortgage is foreclosed on all of the land but the decree directs that the portion not set off to the wife shall be sold before the part set off to her is offered, a sale of the entire tract is illegal and will be set aside, although the tracts were first offered separately. Smith v. Sparks, 162 Ind. 270.

2671. Inheritance from wife.

If land is conveyed to a wife, in consideration of a release by her for the benefit of the creditors of her husband of her inchoate interest in all his property, she holds such land as a purchaser, and such land will not descend to the husband at her death to the exclusion of other heirs. Willson v. Miller, 30 App. 586.

CHAPTER 8.

GUARDIANSHIP.

Section numbers to notes refer to Revised Statutes of 1901.

2682. Minor, custody, tuition, management.

The guardian of an orphan minor child is entitled to the custody and control of the child without regard to the wishes of the child. Palin v. Voliva, 158 Ind. 380.

The right of a father to the custody of a minor child is not absolute, and courts have power to determine as to the custody of such a child, and the welfare and happiness of the child is the paramount question in such cases. Berkshire v. Caley, 157

Ind. 1.

2688. Removal of guardian, marriage.

If a demurrer to a sufficient petition for the removal of a guardian is overruled, and the guardian refuses to answer, he may be removed for want of an answer. Voliva v. Moffitt, 30 App. 225.

2690. Marriage of female ward.

The statute providing that the marriage of a female ward to a man of full age shall terminate the guardianship does not remove the disability of infancy from such ward nor affect her ability to contract. Shipley v. Smith, 162 Ind. 526.

2691. Bond, suit on, law governing.

A suit on the bond of a guardian is barred by the statute of limitations in three years after final settlement. State v. Parsons, 155 Ind. 67.

2715. Proceedings to establish unsound mind.

If a person charged to be of unsound mind is too imbecile to apprehend the character of the proceedings, the protection of his interests may be intrused to the prosecuting attorney, and after judgment is rendered the court may refuse to allow other attorneys to appeal therefrom in the name of such insane person. Chase v. Chase, 163 Ind. 178.

2718. Expenses and cost.

If a person alleged to be insane is found to be of sound mind, judgment for costs is to be rendered against the person making the complaint, and no appeal lies from such judgment. State v. Branyan, 30 App. 502.

2721. Duties and powers of guardians.

The statute providing that, if guardians of minors shall fail to make reports every two years, they shall not be allowed anything for services, applies to guardians of insane persons. Peterson v. Erwin, 28 App. 330.

Duty of the guardian of an insane ward to supply such ward with necessaries, and when suit will lie therefor against the guardian and competency of witnesses to testify on the trial. Hart v. Miller, 29 App. 222; Masters v. Jones, 158 Ind. 647.

2722. Termination of guardianship.

. The death of an insane ward terminates the guardianship, and the guardian should account to the proper person for the estate in his hands, and all just claims may be enforced against the estate of the ward. Masters v. Jones, 158 Ind. 647.

ART.

1.

2.

CHAPTER 9.

WILLS.

Section numbers to notes refer to Revised Statutes of 1901.

Sections omitted have not been construed since 1901.

MAKING-REVOCATION-EFFECT.

2741.

ART.

2732- 3. CONTEST. 2765-2775.
4. LOST WILLS. 2779.

EXECUTION AND PROBATE. 2746-2754.

ARTICLE 1.-MAKING-REVOCATION-EFFECT.

2741. Lapsing of devises and legacies.

2732. Marriage of testatrix, revokes. 2737. Construction of wills.

2732.

Marriage of testatrix revokes.

If a married woman executes a will, and is divorced, her remarriage to her former husband will not revoke the will. Hibberd v. Trask, 160 Ind. 498.

2737. Construction of wills.

The main purpose in construing a will is to arrive at the intention of the testator, and to ascertain that intention all words and clauses in a will are to be considered, and no portion rejected if a reasonable effect can be given thereto. Fenstermaker v. Holman, 158 Ind. 71; Pate v. Bushong, 161 Ind. 533.

A devise in fee, clearly and distinctly made, will not be cut down or modified by a subsequent clause in the will which does not clearly and distinctly manifest the intention of the testator to limit such devise. Lumpkin v. Rodgers, 155 Ind. 285.

If land is devised to one person, and by a subsequent clause the same land is devised to another, the first devisee will take only a life estate in the land. Fenstermaker v. Holman, 158 Ind. 71; Pate v. Bushong, 161 Ind. 533.

2741. Lapsing of devises and legacies.

If land is devised under a contract made between the testator and the devisee that the devisee shall pay a sum of money to a third person, the death of the devisee before the death of the testator will not cause the devise to lapse. Ballard v. Camplin, 161 Ind. 16.

The wife of a beneficiary of a will is not a competent witness to the execution of the will. Belledin v. Gooley, 157 Ind. 49.

The signatures of witnesses to a will is a sufficient attestation without an attesting clause. Barricklow v. Stewart, 163 Ind. 438.

If goods are transferred to a person in consideration of a promise by such person to pay a sum of money to another after the death of the owner of the property, such arrangement is not a testamentary disposition of the property, and the promise may be enforced. Oldenburg v. Baird, 26 App. 379.

2749. Probate of will,

No petition need be filed for the probate of a will, the presentation of the will to the court, with a request that it be admitted to probate, being all that is required. Miller v. Coulter, 156 Ind. 290.

The wife of a beneficiary of a will is not a competent witness to the execution of the will. Belledin v. Gooley, 157 Ind. 49.

The validity of a will does not depend upon the attesting clause, but the testimony of the attesting witnesses on the probate of the will. Barricklow v. Stewart, 163 Ind. 438.

If all the witnesses to the execution of a will are dead, the declarations of such witnesses as to the execution of the will can not be proven. Morell v. Morell, 157 Ind. 179.

When the witnesses to the execution of a will are dead, the genuineness of the sig natures of the testator and of the witnesses may be proven by persons who are acquainted with their handwriting. Morell v. Morell, 157 Ind. 179.

In an application to secure the probate of a will, the execution of which is denied, the person seeking such probate must establish the execution of the will by a preponderance of the evidence. Morell v. Morell, 157 Ind. 179.

Objections to the probate of a will must be made in writing, verified by affidavit that he same is not made for vexation or delay. Miller v. Coulter, 156 Ind. 290.

When a person files objections to the probate of a will he must take steps to bring the interested parties into court, in order that proceedings to probate the will shall be delayed. McGeath v. Starr, 157 Ind. 320.