This was a proceeding, brought by appellee Metzger, executor of the last will of Frederick Beck, deceased, against the widow of said testator and the devisees to obtain an order to sell testator’s real estate to pay the debts of said estate.
It appears from the record that said Frederick Beck died testate in Marion county in the year 1906; that he left no father or mother, nor any descendants surviving him; that his only heir was Margaretha Beck, his widow. • A sister and the children of a deceased sister survived him.
Said testator devised to his widow all of his real estate during her life, and bequeathed to her all of his- personal property “to be her own- absolutely forever.” “At the death of his wife” he devised to a daughter of his widow, by a former husband, his “homestead property to be hers absolutely.” Tie directed that “at the death of his wife” all of his real estate, except said homestead, be sold and conveyed by his executor, and that all money received by his executor from his real estate and from all sources, after paying necessary debts and expenses, be divided among five persons named in his will..
Maria Kabel, who was to receive one-fourth of said money under said last clause, died before the testator, leaving as her only heirs her three sisters. The widow of said testator
Appellants filed an answer to said petition, objecting to said sale, and alleging “that.the widow had accepted the provisions of said will, and was thereby estopped from renouncing the same, and that the election alleged to have been filed in the clerk’s office was void, and that under §2786 Burns 1908, §2269 R. S. 1881, she was not, as widow, entitled to the $500 from the estate. ’ ’ The court below found and adjudged that the widow had properly elected, to take under the law and not under the provisions of said will, and that by reason of said election, as widow,- she is entitled to the undivided one-third in fee simple of all of the real estate owned by said testator at the time of his death, and also to the sum of $500 allowed her as widow by §2786, supra; that, by reason of said election to take under the law, the. estate of said testator remains and is undevised during the life of said widow, and the share of one-fourth devised to Maria Kabel, to be paid at the death of the widow, has lapsed on account of her 'death before the death of the testator, she not being a descendant of the testator, and the same remains and is undevised (Maxwell v. Fealherston [1882], 83 Ind. 339); that said widow is the sole and only heir of said testator, and as such heir she is entitled to all of said life estate and all of the share devised to said Maria Kabel; that, the personal property is insufficient to pay the liabilities of said estate, and that the undevised estate during the life of the widow, in all the lands owned by the testator at the time of his death or so much thereof as may be necessary, be sold to pay the debts of said estate.
Appellants filed a motion for a new trial, which was overruled. The only error assigned is that the court erred in overruling appellants ’ motion for a new trial.
The only causes assigned for a new trial and not waived
1. Counsel for the appellants contend that when the widow, as in this case, “renounced a life estate and took under the statute one-third in fee simple in all the real estate of which her husband died the owner, she thereby disappointed the devisees of the fee, and they will be given the life estate in the undivided two-thirds of said real estate from the time of such renunciation; that the widow’s renunciation terminated her life estate and appellants took" at once, the same as if the .widow was dead.” Citing 2 Jarman, Wills (5th Am. ed.), p. 7, note 5; 1 Jarman, Wills (6th Am. ed.), *536, *537; Fox v. Rumery (1878), 68 Me. 121; Jennings v. Jennings (1871), 21 Ohio St. 56, 80, 81, and authorities cited. Counsel further contend that, under this rule, the deceased died testate as to all his property except the lapsed devise to Maria Eabel, and the court therefore erred in not ordering said lapsed devise sold to pay debts, as required by §3125 Burns 1908, §2569 R. S. 1881, which provides that when a testator leaves undevised real estate, the same must be first sold to pay debts before devised real estate can be sold, instead of said life estate which was not left undevised by his will.
3. In Cool v. Cool (1876), 54 Ind. 225, the court followed and approved Busing v. Busing, supra, and held that where a- testator, who dies leaving no child and no father or mother, devises his real estate to his wife so long as she remains his widow, and directs that after the death of his wife his property shall be divided among the children of his brothers and sisters, and his widow takes under the law and not under the will, that, by such election not to take under the will, the estate during her life was not disposed of by the will, but was undevised, and went to her as heir under §3028, supra.
In Hault, v. McComas, supra, the testator devised to each of his three sons forty acres of land, and to his widow seventy-seven and sixty-two-hundredths acres of land during her life, and after her death the same was to be equally di
4. This has been the rule in cases like the one before us since the decision of Rusing v. Rusing, supra, a period of more than forty years. During said period said rule has been approved and reaffirmed by many decisions of this court, as before shown. Wills have been made and title to real estate acquired by purchase upon the faith of, and in reliance upon, the rule thus established, and the
5. After a careful examination of the evidence, we cannot say that the finding of the court, as to any of the issues, including the validity of the widow’s election and her right to the $500 allowed to a -widow by the statute, was not sustained by sufficient evidence, or that the same was contrary to law.
6. It is proper to suggest that the transcript shows that the court below ordered the sale “of the undevised estate during the life of the widow in all the. lands owned by the testator at the time of his death.” The order should . have been for the sale of “the undevised estate during the life of the widow in the undivided two-thirds of all the lands owned by the testator at the time of his death,” because she took the undivided one-third thereof in fee simple under §§3014, 3029, supra, free from all demands of creditors.
Finding no error of which appellants have any right to complain, the judgment is affirmed.