"Also thirty acres of land off the south end of the east half of south quarter of section twenty-nine (29), town (18) eighteen, range (9) nine, in fee simple, and then direct him to pay the following amounts out of the estate, to wit:

Rook v. Wilson, 142 Ind. 24, 51 Am. St. | (9) nine, containing one hundred and sixty Rep. 163, 41 N. E. 311; Cleveland v. Spil- acres, and also twenty acres off the northman, 25 Ind. 95; Smith v. Kimball, 62 west quarter of section twenty-nine (29), N. H. 606; Priest v. Lackey, 140 Ind. 399, town (18) range nine; and 39 N. E. 54; Pocock v. Redinger, 108 Ind. 573, 58 Am. Rep. 71, 9 N. E. 473; Huffman v. Young, 170 Ill. 290, 49 N. E. 570; Eckford v. Eckford, 91 Iowa, 54, 26 L. R. A. 370, 58 N. W. 1093; Stewart v. Stewart, 96 Iowa, 620, 65 N. W. 976; Whitcomb v. Rodman, 156 Ill. 116, 28 L. R. A. 149, 47 Am. St. Rep. 181, 40 N. E. 553; Seebrock v. Fedawa, 33 Neb. 413, 29 Am. St. Rep. 488, 50 N. W. 270.

"Art. 5th: To my granddaughter or heirs, Minerva A. Kerens, the sum of four hundred and fifty dollars ($450).

"Section 6th. To my granddaughter and children, Phebe T. Estell, the sum of two

Monks, J., delivered the opinion of the hundred and twenty-five dollars ($225). court:

"Art. 7th: To my granddaughter and her children, Hannah N. Addison, the sum of two hundred and twenty-five dollars ($225).

Jackson Bushong died intestate in Henry county, Indiana, in 1898, leaving his widow, Lydia Bushong, his son, Peter P. Bushong, the appellee, and his five grandchildren, Minerva A. Pate, Phoebe T. Thompson, Han-twenty-five dollars ($225). nah N. Addison, Cora C. Warrington, and Lillie L. Elliston, children of a deceased daughter of the testator. Said will was legally probated. After the death of said widow, appellants brought this action against appellee for partition of the lands devised to the widow, upon the theory that she took the same in fee simple under said will. The will, omitting the codicil, which is not necessary to a determination of this cause, reads as follows:

"Art. 8th: To my granddaughter, Cora C. Reddick, the sum of two hundred and

"Art. 1st: I give, will, and bequeath to my beloved wife Lydia Bushong after my death, should she be living, all of my real estate and personal property that may be left of my estate after my death, except such as may be necessary to pay the expenses of my last sickness and funeral, which I direct to be promptly paid out of my estate, and also such amount of money as may be necessary to pay for a suitable monument for myself and wife, not exceeding four hundred dollars, at the discretion of my execu

tor.

"Art. 2d: I hereby appoint my son Peter P. Bushong my executor, with full power and authority to execute the provisions of my will and make all settlements with each of the hereinafter mentioned heirs, without bond or security.

"Art. 3d: After the death of my dear wife, should she outlive me and after all expenses of her last sickness and funeral, and all other debts, if any, be paid out of the then remaining estate, I then will and direct as follows:

“Art. 4th: I will, give, and bequeath to my only son, Peter P. Bushong, the following real estate in Henry county, state of Indiana:

"The northeast quarter of section (29) twenty-nine, township (18) eighteen, range

"Art. 9th: To my granddaughter, Lila L. Elliston, the sum of five hundred dollars ($500). Making a total amount of sixteen hundred and twenty-five dollars to be paid to my five granddaughters, as named in the above sections by my son, Peter P. Bushong, in the following order to wit:

"Section 10th: Three months after the death of my wife, P. P. Bushong shall pay to my granddaughter, Lila L. Elliston, or her heirs, if any, the sum of one hundred dollars; and one year later the sum of five hundred to be equally divided between the five heirs, one hundred dollars each, and to continue each succeeding year at the same ratio until each heir shall have received three full payments as stated above, provided, however, that there is to be no interest computed on any payment.

"Art. 11th: I further direct, give, and bequeath. to my son, Peter P. Bushong, after the death of my wife, and after all expenses of her last sickness and funeral expenses are paid, all of the farming utensils, grain, hay, and stock of all kinds that may remain on the farm.

"Art. 12. I further give and bequeath to my son, Peter P. Bushong, and my five grandchildren, all of the household goods to be divided equally among the six heirs, and should any of my granddaughters die intestate with no heirs living, I direct that the amounts be divided among those that are living.

"Given under my hand and seal this 17th day of August, eighteen hundred and ninety-three, (1893)."

At the time the testator made said will, and at the time of his death, he was the owner in fee simple and in the possession of |the following described real estate in Henry county, Indiana, and he was not the owner

of any other lands from the date of his will vised said real estate to his widow in "fee until the time of his death: The northeast simple," either in apt words or by the use quarter of section 29, township 18 north, of of legal words of inheritance. Neither has range 9 east; also 30 acres off the south end he given his widow the power of disposing of the east half of the southwest quarter of of said real estate in express terms, nor do section 29, township 18 north, of range 9 we think such power can be implied from east; also 20 acres off the west side of the the language of the will. The will gives to following described lands, to wit, commenc- Peter P. Bushong in fee simple 210 acres of ing 16 rods south of the northwest corner real estate, all the real estate the testator of the northwest quarter of section 28, town-owned when he made the will and at the ship 18 north, of range 9 east, and running thence east 96 rods; thence south to the south line of said northwest quarter of said section, township, and range; thence west on the said line 96 rods to the section line; thence north to the place of beginning. The testator and his wife lived on the 160 acres described in the will, and the 20-acre tract adjoined the same on the east. Appellee also lived on said tract in a house near his father's house, and continued to live thereon after his father's death. After the death of the testator, Peter P. Bushong, appellee, was appointed and qualified as executor of said will, and paid over to appellants Cora C. Warrington and Phoebe T. Thompson the legacies given them by items 6 and 8 of the will, taking receipts therefor as executor.

The questions presented by the record are: (1) Did Lydia Bushong, the widow, take said real estate for life only under said will? (2) Was there a mistake in describing the 20 and 30 acre tracts of land named in the will, and, if so, can the same be corrected, or so interpreted as to apply to the 20 and 30 acre tracts owned by the testator at the time he made the will and at the time of his death? (3) Were Cora C. Warrington and Phoebe T. Thompson estopped from claiming a share in the lands as heirs of Lydia Bushong if she took a fee, by accepting of the executor the legacies given them by the will? The trial court decided these questions in the affirmative, and rendered judgment in favor of appellee. If questions 1 and 2 are answered in the affirmative, it will not be necessary to determine the third.

The purpose of construing a will is to ascertain the intention of the testator, which must be given effect when ascertained, unless in violation of some rule of law. To ascertain such intention, the whole will must be considered, and no word or clause in the will is to be rejected to which a reasonable effect can be given. In this state only a life estate will pass to a devisee unless it affirmatively appears a greater estate was intended. Burns's Rev. Stat. 1901, § 2737 (Rev. Stat. 1881, § 2567 and Horner's Rev. Stat. 1901, § 2567); Fenstermaker v. Holman, 158 Ind. 71, 74, 62 N. E. 699, and cases cited. It will be observed that the testator has not said in express terms that he de

time of his death, and not what remained undisposed of or unexpended at the death of his wife. It is clear, therefore, that the power of the widow to dispose of said real estate cannot be inferred from items 3 and 4. Item 11 describes a kind of personal property which is consumed or destroyed by use, and the language thereof shows that it was the intention of the testator that the expenses of his widow's last sickness and her funeral expenses should be paid out of the property described therein. It is evident that the power of the widow to sell the real estate devised to her cannot be iuferred from that item.

Having reached the conclusion that the widow was not given by implication or express words the power to dispose of said real estate, it is clear that, so far as the question of what interest she took in the real estate devised to her is concerned, the same is ruled by the case of Fenstermaker v. Holman, 158 Ind. 71, 62 N. E. 699, and that she took only a life estate therein.

Appellants claim that appellee took no title to the 20 and 30 acre tracts of land in controversy under the will of the testator, because said tracts are not described in the will. It will be observed that the 20-acre tract is described as in section 29, while the 20-acre tract owned by the testator when the will was made and at the time of his death was in section 28, adjoining the 160 acres described in the will. The 30acre tract is definitely described in the will, except that the words "south quarter” instead of "southeast quarter" are written in the will. When a person makes a will the presumption is that he intended to dispose of his whole estate, unless it is rebutted by the provisions of the will, or other evidence to the contrary. 2 Redf. Wills, 3d ed. § 5x, p. 116; Cate v. Cranor, 30 Ind. 292, 295, 296; Roy v. Rowe, 90 Ind. 54, 59, 60; Mills v. Franklin, 128 Ind. 444, 446, 28 N. E. 60; Groves v. Culph, 132 Ind. 186, 188, 31 N. E. 569; Borgner v. Brown, 133 Ind. 391, 396, 33 N. E. 92; Korf v. Gerichs, 145 Ind. 134, 136, 44 N. E. 24; Woman's Union Missionary Soc. v. Mead, 131 Ill. 338, 357, 358, 23 N. E. 603; Vestal v. Garrett, 197 Ill. 398, 404, 406, 64 N. E. 345. There is nothing in the will in this case or in the evidence to rebut this presumption. When

mons, 3 Bradf. 144; Cleveland v. Carson, 18 Cent. L. J. 68, and note, 69–71 (37 N. J. Eq. 377); Willard v. Darrah, 168 Mo. 660, 90 Am. St. Rep. 468, 68 S. W. 1023; Riggs v. Myers, 20 Mo. 239; Gaston's Estate, 188 Pa. 374, 68 Am. St. Rep. 874, 41 Atl. 529; Black v. Richards, 95 Ind. 184, 189-191; Jackson v. Hoover, 26 Ind. 511; Whiteman v. Whiteman, 152 Ind. 263, 268–274, 53 N. E. 225; Miller v. Coulter, 156 Ind. 290, 293, 59 N. E. 853; Groves v. Culph, 132 Ind. 186, 31 N. E. 569; Skinner v. Harrison Twp. 116 Ind. 139, 2 L. R. A. 137, 18 N. E. 529; Elliott v. Elliott, 117 Ind. 380, 10 Am. St. Rep. 54, 20 N. E. 264; Chappell v. Missionary Soc. 3 Ind. App. 356, 50 Am. St. Rep. 276, 29 N. E. 924.

the will was executed, and at the time of Wills, 909-914; O'Hara, Interpretation of his death, the testator owned 210 acres of Wills, pp. 369-374; O'Hara's Wigram, Exland, and no more. This he devised to his trinsic Evidence in the Interpretation of Wills, wife for life, and attempted to devise 210 2d Am. ed. pp. 52-54, 144-147; Page, Wills, acres in fee simple to appellee,-all the land §§ 473, 487, 819; Kurtz v. Hibner (Ill.) 3 owned by him. While it is clear that the Alb. L. J. 263-267, and Judge Redfield's note testator intended to dispose of all the lands thereto in 10 Am. L. Reg. N. S. 97-101; he owned, the language used in describing South Newmarket Methodist Seminary v. the 20 and 30 acre tracts, if construed lit- Peaslee, 15 N. H. 317; Winkley v. Kaime, erally, would defeat this intention, at 32 N. H. 268; Allen v. Lyons, 2 Wash. C. C. least as to the 20-acre tract. As we have 475, Fed. Cas. No. 227; Patch v. White, 117 already said, the intention of a testator | U. S. 210, 29 L. ed. 860, 6 Sup. Ct. Rep. 617, must in all cases govern the construction 710; Roman Catholic Orphan Asylum v. Emof a will, unless in violation of some rule of law. To ascertain such intention, the court | may hear evidence of the circumstances, situation, and surroundings of the testator when the will was made, and the state and description of his property. 2 Underhill, Wills, §§ 909-911, 914; O'Hara's Wigram, Extrinsic Evidence in the Interpretation of Wills, 2d Am. ed. pp. 56, 161; Schouler, Wills, § 579; Randolph & Talcott's Jarman, Wills, 733-762; Page, Wills, §§ 816, 817; Whiteman v. Whiteman, 152 Ind. 263, 273, 274, 53 N. E. 225; Patch v. White, 117 U. S. 210, 217, 29 L. ed. 860, 864, 6 Sup. Ct. Rep. 617, 710; Black v. Richards, 95 Ind. 184, 189-191; Daugherty v. Rogers, 119 Ind. | 254, 258-261, 3 L. R. A. 847, 20 N. E. 779; Dennis v. Holsapple, 148 Ind. 297, 46 L. R. A. 168, 62 Am. St. Rep. 526, 47 N. E. 631; Price v. Price, 89 Ind. 90, 91. By thus put ting itself in the testator's place, the court is able to understand and apply the language of the will, and give effect to a will containing errors or repugnancies, so far as the intention of the testator can be determined, and will pronounce judgment with such repugnancies removed or errors corrected. It is well settled that, when a latent ambiguity is disclosed by extrinsic evidence, it may be removed by extrinsic evidence. Whiteman v. Whiteman, 152 Ind. 263, 270, 53 N. E. 225; Patch v. White, 117 U. S. 210, 217, 29 L. ed. 860, 864, 6 Sup. Ct. Rep. 617, 710. It is true that extrinsic evidence will not be resorted to for the purpose of changing or varying the words of a will, but courts for a long period of years have felt compelled to deal with descriptions in such a manner as to reach the intent of the testator, when that seemed practicable, by construction, and by the admission of oral evidence to remove latent ambiguities. It is well established that, however many errors there may be in a description, either of the devisee or the subject of the devise, it will not avoid the bequest if, after rejecting the errors or false words, enough remains to show with reasonable certainty what was intended when considered from the position of the testator. Redf. Wills, 4th ed. 580 et seq.; 2 Underhill,

1

In Patch v. White, 117 U. S. 210, 29 L. ed. 860, Sup. Ct. Rep. 617, 710, the testator devised certain specific lots to each of his near relatives, and, among others, to his brother Henry a lot described as "lot number 6 in square 403, together with the improvements thereon erected." The court said: "Now the parol evidence discloses the fact that there was an evident misdescription of the lot intended to be divided. It shows, first, as before stated, that the testator, at the time of making his will, and at the time of his death, did not, and never did, own lot 6 in square 403, but did own lot 3 in square 406; secondly, that the former lot had no improvements on it at all, and was located on ninth street, between I and K streets, whilst the latter, which he did own, was located on E street, between Eighth and Ninth streets, and had a dwelling house on it, and was occupied by the testator's tenants, a circumstance which precludes the idea that he could have overlooked it. It seems to us that this evidence, taken in connection with the whole tenor of the will, amounts to demonstration as to which lot was in the testator's mind. It raises a latent, ambiguity. The question is one of identification between two lots, to determine which was in the testator's mind,-whether lot 3, square 406, which he owned, and which had improvements erected thereon, and thus corresponded with the implications of the will, and with part of the description

for the purpose of enabling the court to identify the person intended by the testator.' [pp. 988. 989.] Again, he says, on page 1032: 'Mistakes in the description of legacies, like those in the description of legatees, may be rectified by reference to the terms of the gift and evidence of extrinsic circumstances taken together. The error of the testator, says Swinburne, in the proper name of the thing bequeathed, doth not hurt the validity of the legacy, so that the body or substance of the thing bequeathed is certain. As, for instance, the testator bequeaths his horse Criple, when the name of the horse was Tulip. This mistake shall not make the legacy void; for the legatory may have the horse by the last denomination; for the testator's meaning was certain that he should have the horse. If, therefore, he hath the thing devised, it is not material if he hath it by the right or the wrong name.' See also Roper, Legacies, 297."

In Allen v. Lyons, 2 Wash. C. C. 475, Fed. Cas. No. 227, the devise was of a "house and lot in Fourth street, Philadelphia," but it appeared on oral proof that the testator had no such property in Fourth street, but did own a house and lot in Third street, and it was held to pass under the devise.

of the lot, and rendered the devise effective; | the testator, and of his family and affairs, or lot 6, square 403, which he did not own, which had no improvements thereon, and which rendered the devise ineffective. What he meant to devise was a lot that he owned; a lot with improvements on it; a lot that he did not specifically devise to any other of his devisees. Did such a lot exist? If so, what lot was it? We know that such a lot did exist, and only one such lot in the world, and that this lot was the lot in question in this cause, namely, lot No. 3 in square 406. Then is it not most clear that the words of the will, 'lot numbered 6 in square 403,' contained a false description? It is settled doctrine that, as a latent ambiguity is only disclosed by extrinsic evidence, it may be removed by extrinsic evidence. Such an ambiguity may arise upon a will either when it names a person as the object of a gift or a thing as the subject of it, and there are two persons or things that answer such name or description; or, secondly, it may arise when the will contains a misdescription of the object or subject; as where there is no such person or thing in existence, or, if in existence, the person is not the one intended, or the thing does not belong to the testator. The first kind of ambiguity, where there are two persons or things equally answering the description, may be removed by any evidence that will have that effect, either circumstances or declarations of the testator. 1 Jarman, Wills, 370; Hawkins, Wills, 9, 10. Where it consists of a misdescription, as before stated, if the misdescription can be struck out, and enough remain in the will to identify the person or thing, the court will deal with it in that way; or. if it is an obvious mistake, will read it as if corrected. The ambiguity in the latter case consists in the repugnancy between the manifest intent of the will and the misdescription of the donee or the subject of the gift. In such a case evidence is always admissible to show the condition of the testator's family and estate, and the cir-ter of the northeast quarter of the section. cumstances by which he was surrounded at the time of making his will. 1 Jarman, Wills, 364, 365; 1 Roper, Legacies, 297 (4th ed.); 2 Wms. Exrs. 988, 1032. Mr. Williams (afterwards Mr. Justice Williams) says: 'Where the name or description of a legatee is erroneous, and there is no reasonable doubt as to the person who was intended to be named or described, the mistake shall not disappoint the bequest. The error may be rectified: ... (1) By the context of the will; (2) to a certain extent by parol evidence. . . A court may inquire into every material fact relating to the person who claims to be interested under the will, and to the circumstances of

In Winkley v. Kaime, 32 N. H. 268, the devise was of "thirty-six acres, more or less, of lot 37 in the second division of Barnstead;" and, it appearing that there was no such lot in that division, but that the testator owned land in lot 97 in that division, it was held to pass under will.

In Decker v. Decker, 121 Ill. 341, 12 N. E. 750, the testator, by the terms of his will, devised 20 acres off the west half of the northeast quarter of the northeast quarter of section 33, township 18 north, of range 11 west. The evidence showed that the testator never owned the northeast quarter of the northeast quarter of section 33, or any part of it, but did own the northwest quar

It was held that there was a latent ambiguity in the devise; the words describing the land being in part false, and that the false description might be stricken out, and the devise sustained as embracing the land owned by the testator.

In Whitcomb v. Rodman, 156 Ill. 116, 28 L. R. A. 149, 47 Am. St. Rep. 181, 40 N. E. 553, the testator devised parcels of land aggregating 180 acres (all that he owned), but in devises to two sons, respectively, described two 40's in the southeast quarter of section 22, adjoining those really owned by him in the northeast quarter of said section, leaving the latter undisposed of, and it was held the devise covered the 40's owned by

sec

26 L. R. A. 370, 58 N. W. 1093], we are of the opinion that extrinsic evidence may be received to show what quarter was intended by the testator."

In Iuffman v. Young, 170 III. 290, 49 N. E. 570, the language of the will was: "Item 3. I give and devise to my son, Noah Young, 622 acres off of the east side of the northeast quarter of section number twenty (20), township [21 north, of range 11 west]." The testator did not own 624 acres off of the east side, but did own 62 acres in the east half of said quarter section. The court said: "Striking out the words 'off of the east side,' the third item will read: . . . also 62 acres of the northeast quarter of section number twenty (20), township [21 north, range 11 west.'] This description is sufficiently definite to include the land in dispute."

the testator in the northeast quarter of said section. The court said (at p. 125, 156 Ill., p. 152, 28 L. R. A., p. 185, 47 Am. St. Rep., and p. 555, 40 N. E.): "While words cannot be added to a will, yet, in arriving at the intention of the testator, as has been shown by the authorities, so much as is false in the description of the premises devised may be stricken out, and, after striking out the false description, if enough remains to identify the premises intended to be devised, the will may be read and construed with the false words eliminated therefrom. Adopting that rule here, the second and third clauses will read as follows: 'Second -To my son Joseph L. Rodman I will and bequeath one hundred acres of land (100) — sixty acres (60) off of the west side of the south-east quarter of section twenty-two (22), forty acres (40) being the quarter of the quarter of In Merrick v. Merrick, 37 Ohio St. 126tion twenty-two (22). Third-To my 132, 41 Am. Rep. 493, the land devised was son Edward L. Rodman I will and described as "the east half of the southeast bequeath forty acres of land, being the quarter of said section 28," which testator quarter of the quarter of did not own, but he did own "the east half section twenty-two (22).' Bearing in of the northeast quarter of section 28." The mind that the testator owned two 40- court said: "The evidence fully supports acre tracts in the northeast quarter of sec the claim that, while the will on its face is tion 22, and reading the two clauses of free from ambiguity, the word "south," in the will in the light of surrounding cir- its third item, was inserted by mere miscumstances, we think all difficulty is re- take of the scrivener, the testator intending moved in regard to the lands devised by that the word "north" should be used. The these two provisions of the will. The tes- sole question, therefore, is whether, on proof tator, owning two quarters of a quarter of of such fact, it is competent for the court section 22, devised one quarter to his son to declare that the east half of the northJoseph, and the other quarter to his son east quarter of section 28 passed by the Edward, and the two sons took and held will. Rejecting the erroneous dethe two tracts undivided." scription, the word "south," sufficient appears on the face of the will, in the light of the facts here disclosed, to warrant us in saying that by the will of Adam Merrick the other moiety, the east half of the northeast quarter of section 28 [passed]. And thus the case is determined by a just and proper application of the maxim, Falsa demonstratio non nocet."

In Stewart v. Stewart, 96 Iowa, 620, 65 N. W. 976, the testator gave to his son Fred D. Stewart "the south half of the northeast quarter of section 30 in township 76 north of range 7 west." This tract did not belong to the testator when the will was made or at the time of his death, but he owned at said times, the south half of the southeast quarter of that section, which was not described in the will. The court disregarded the word "north" in the will, and held that the will gave said devisee said south half of the southeast quarter of said section 30. The court said at page 627, 96 Iowa, page 976, 65 N. W.: "The evidence shows that the description of the land in question is in part wrong. After rejecting the erroneous portion, the remainder describes the south half of the east quarter of section No. 30,' etc. The section contains two tracts which may be properly spoken of as the 'east quarters,' and, under the rules of interpretation cited [Jordan v. Woodin, 93 Iowa, 453, 61 N. W. 948; Patch v. White, 117 U. S. 210, 29 L. ed. 860, 6 Sup. Ct. Rep. 617, 710; Eckford v. Eckford, 91 Iowa, 54,

In Case v. Young, 3 Minn. 209, Gil. 140, the testator gave to his wife "the one-third of all real estate;" to his son David, "the north half of the real estate;" to his son Jacob, "the south half of the real estate." There was no other description of the real estate contained in the will. The court, at 3 Minn. 209, Gil. 143, said: "It is insisted that it does not describe any real estate whatsoever. Had the language used been of my real estate,' or 'of the real estate I now own,' or 'the real estate of which I shall die seised,' it is admitted that it would have been sufficiently certain. are we to suppose that the testator here intended to devise or referred to the real estate of any other person? We ought not to presume that he intended an impossi

. . But