# Harmon v. Brown

> Indiana Supreme Court · November 15, 1877 · 58 Ind. 207

URL: https://www.frixlaw.com/law-library/cases/7041913

## Case

- **Full name:** Harmon v. Brown et ux.
- **Court:** Indiana Supreme Court
- **Decided:** November 15, 1877
- **Citations:** 58 Ind. 207
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Worden
- **Cited by:** 17 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7041913

## Opinion text

On petition for a rehearing.
In this case a petition for a rehearing has been filed, in which it is insisted, that, by the will of Cutliif Harmon, his widow, now Mrs. Brown, took the fee in the lands devised to her, and that the estate thus devised to her can not be cut down by a condition in restraint of marriage. On this point we desire to add but little to what was said in the original opinion in the cause. The case of Spurgeon v. Scheible, 43 Ind. 216 , has been cited as *212 being in conflict with the conclusion arrived at in this case. The language of the will in that case, so far as it affects the question involved, was, after directing the investment of some money in lands for the benefit of the testator’s heirs, as follows: “ I also direct that the whole of my real and personal estate, except as hereinbefore mentioned, shall be and remain the absolute property of my beloved wife, so long as she remains my widow, and that she shall have entire control of the same as she may seem proper; and if, provided she shall marry, then I direct that an administration shall be had upon all my estate, except as beforesaid, and that the same shall be distributed according to law.” It was held that the widow took the fee.
In the case now under consideration, there is nothing in the will whatever that indicates an intention or purpose on the part of the testator to give his wife any thing more, in any event, than an estate during her widowhood; and were we to hold otherwise, we should be making a will for the testator which he himself never made. And we can not see that the will in the case in 43 Ind. differs materially from that in the present case, and we are of opinion, that, in respect to this point, that case must be overruled.
It is also urged that the complaint was bad, because the land was in the adverse possession of Mrs. Brown. This was no objection to the proceedings for partition. Godfrey v. Godfrey, 17 Ind. 6 .
Again it is objected, that if Mrs. Brown was only entitled to an estate during her widowhood, under the first clause of the will, still she was entitled to a share, as heir to her husband, under the latter clause. Without determining this question, which is not before us, we may say, that if she is thus entitled, she being made a party, she may set up her claim, and have it passed upon in the partition proceedings. Godfrey v. Godfrey, supra.
The petition for a rehearing is overruled.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7041913. Public record. Not legal advice.