Action by the trustees of the Methodist Episcopal Church of Houston, Indiana, and Daniel 33. Eddy, executor of the last will of John Cross, deceased. The amended complaint is in two paragraphs. The first is to quiet title, alleging that the plaintiffs are the owners in
1. The errors assigned question the sufficiency of the amended second paragraph of the complaint, upon which paragraph the decree was entered. It is argued that said paragraph does not state a cause of action in favor of either of the plaintiffs-. The only averment as to Eddy is that on September —, 1897, he qualified as executor of the last will and estate of John Cross, deceased, and that he is still acting as such, and that by the terms of said will he is entrusted with the remainder of the personal and real estate of said decedent and charged with the control and management thereof. It is insisted that the complaint is not sufficient as to the executor, be
2. It is further insisted that the complaint is insufficient because it does not set out a copy of the will'. This is not an action to construe the will. The will is only evidence to support appellee’s right of action. In Eddy v. Cross (1901), 26 Ind. App. 643, appellee’s complaint states that on July 24, 1897, John Gross died testate in Jackson county; that his last will was duly probated and recorded in the office of the clerk of the Jackson Circuit Court on August 26, 1897 (the will was referred to as an exhibit, but was not thereby made a part of the complaint); that she is the widow of decedent, and that she has elected to take under the will in lieu of the statute; that the decedent died seized of certain real estate situate in Jackson county, and also personal property of the value of $....; that appellant Eddy is the duly qualified and acting executor of said will; that the administration has been continued, pending settlement, more than one year; that he filed an annual report on August 25, 1898; that all the debts of decedent have been paid; that the executor has $...., consisting of money, notes, bonds, stocks, etc. ; that by the terms of said will she is the sole legatee, and all the property of said decedent, both personal and real, is to be hers during her lifetime, and she is entitled to the immediate possession of said balance of-such estate remaining in the hands of said executor; that the executor refuses to pay over the balance. The prayer was that the provisions of the will be construed so as to give her the possession of the property bequeathed to her, and that the executor be ordered to close and settle the administration of said estate. The court held that the complaint did not contain averments necessary to an action for the construction of the will, but stated that they showed that the plaintiff was
The will was introduced in evidence by plaintiff in the case at bar. • Item two is as follows:
“I give and bequeath to my beloved wife, Canzada Cross, all my property, both personal and real, to be hers during her lifetime, and at her death I wish what property is left to be applied toward building a Methodist Episcopal church at or near Houston, Indiana.”
3. This item gives the widow, Canzada, for life only, the real and personal estate of the deceased, in certain and expressed terms, in which case a power of disposition annexed does not operate to create an estate in fee in the widow. Rush v. Zuck (1897), 147 Ind. 388; Hammond v. Croxton (1903), 162 Ind. 353; Mulvane v. Rude (1896), 146 Ind. 476.
4. No attempt is made to disturb the widow in the legitimate enjoyment of the life estate, but waste is not a legitimate enjoyment of the life estate.
5. She could convey no interest greater than a life estate. There is evidence tending to support the material averments of the complaint.
Judgment affirmed.