dissenting.
The majority agrees with the trial court that the doctrine of equitable election does not apply in this case. I respectfully disagree.
The doctrine of equitable election cere-ates an obligation upon a beneficiary under a will to "elect" between two inconsistent rights or claims which have been created by the will or by law. McEwen v. McEwen, 529 N.E.2d 355, 359 n. 4 (Ind.Ct.App.1988). If a testator by his will assumes to dispose of the property of another person who is also made a beneficiary under the will, such person's acceptance of the will is a confirmation of its terms and estops such person from objecting to the disposition of his own property. Id. As the majority notes, there is a presumption that the testator intended to dispose of only his own property. Slip op. at 5 (citing Stasell, 408 N.E.2d at 591).
The majority concludes, based upon comparison with several cases, that the *74will does not clearly express Nicholag' intent to dispose of property he owned with Eva as tenants by the entireties. Giving due consideration to the presumption, I believe the language in Nicholas' will is far more specific than the language in any of the cases cited by the majority and the doctrine of equitable election should apply in this instance.
In Miller, husband and wife owned property by the entireties. The husband devised "all my real estate that I may have at the time of my death" to his wife. 182 N.E. at 607 (emphasis added). Because the entireties property was not specifically described in the will and because the property passed to the wife automatically at the time of the husband's death by operation of law, we held that equitable election did not apply. Likewise, in Hoff, husband and wife owned property by the entireties and husband also owned property in fee simple. The husband devised "all the real estate of which I may be possessed at the time of my death" to his wife. 192 N.E. at 330 (emphasis added). Because the will did not "deseribe ... or even refer to" the entireties property, it necessarily referred only to the fee simple property, and equitable election did not apply. Id. at 331. Finally, in Ragsdale, husband and wife owned eighty acres by the entireties. The husband owned an additional, contiguous 140 acres in fee simple, and he operated the entire 220 acres as a single farm. The husband devised "to my brothers in equal shares my farm ... subject to the life interest in my said mother and wife [in the rents and profits of the farm]." 38 N.E.2d at 571 (emphasis added). Our supreme court held that "my farm" described only the 140 acres husband owned in fee simple.
In each of the cited cases, the devise was somewhat generic and/or specifically referred only to property owned by the testator alone. Here, the bequest is very specific-"the home in which we are living at the time of my death"-and refers unmistakably to property owned by Nicholas and Eva by the entireties. Although Nicholas and Eva did not yet own the specific property at issue when Nicholas executed his will, and in fact, when the will was executed, the residence in which they resided was in Nicholas' name only, a will is ambulatory and does not operate until the testator's death. Citizens Nat. Bank of Whitley County v. Stasell, 408 N.E.2d 587, 591 (Ind.Ct.App.1980). Absent evidence to the contrary, a will is construed to include after-acquired property. See Ind.Code § 29-1-6-1(a) ("Any estate, right, or interest in land or other things acquired by the testator after the making of the testator's will shall pass as if title was vested in the testator at the time of making of the will."). In Stasell, we noted that "it logically follows from prior case law that ownership of the property at the time of the execution of the will is not relevant to the doctrine of election." Id. Moreover, a "testator's power to give necessarily includes the right to ... attach terms and conditions to the gift ...." Dickey v. Citizens' State Bank of Fairmount, 98 Ind.App. 58, 180 N.E. 36, 38 (1932). Under these circumstances, I believe the presumption is overcome, and it is clear from the will that Nicholas intended to dispose of Eva's property because the provisions of his will conflict with the terms of a tenancy by the entireties.
In Young v. Biehl, 166 Ind. 357, 77 N.E. 406 (1906), the husband's will devised a life estate to his wife in both property he owned in fee simple and property he owned by the entireties with wife, with the remainder in fee simple to his children. The husband lacked testamentary power to dispose of the entireties property in such a manner because by operation of law the property would pass to wife automatically on his death. However, the wife's *75acceptance of the other beneficial provisions of the will confirmed and ratified the will as a whole, and the wife was equitably estopped from asserting title in fee to the entireties property. Rather, she had only a life estate in that property pursuant to the terms of the will.4 Id. at 407. Just as the husband in Young devised by his will property that he did not own, so has Nicholas here. Under the doctrine of equitable election, Eva was required to either take the residence as it passed to her on Nicholas' death by operation of law and forego the other beneficial provisions of Nicholas' will, or forego her interest in the residence and take pursuant to the terms of the will. Because Eva took pursuant to the terms of the will, the value of the house should have been included in the value of the estate and then set aside to Eiva as part of her one-half of the residue.
I would reverse the decision of the trial court.
. Wife had actually purported to sell the en-tireties property and the action was brought by husband's children and remaindermen against the purchaser to quiet title. The ultimate holding was that the purchaser had no more interest in the land than the wife had to give-namely, a life estate. Id.