Dunlap v. McCloud

Citations

• 84 Ohio St. (N.S.) 272

Syllabus

<p>Testator devises all real estate to devisees in trust — By codicil devises part of same to another for life estate — Latter devise is withdrawn from former — Widow elects not to take under will — Dower set off may not disturb life estate devise, when— Residuary ■estate should compensate dower requirements — Rather than specific devise, when.</p> <p>1. Where a testator devises all of his real estate to certain individuals in trust and afterwards by codicils devises a part of the same real estate to another person for and during his natural life, such life estate is thereby, ex vi termini, withdrawn from the operation of the trust during the life of the life tenant.</p> <p>2. Where the widow in such case elects not to take under the will and demands assignment of her dower as of all the lands of which the testator died 'seized, and it appears that there is land enough to set off the dower without interfering with land specifically devised for life, it should be so done; and it is error to direct that the dower be set off in part in the lands . so specifically devised for life.</p> <p>3. While in such case the devisees who are prejudiced by the 'widow’s' election to be endowed of the lands of her husband, are equitably entitled to compensation out of the rejected provisions made for her in the will, yet where the rejected provisions do not fully compensate, the resulting uncompensated loss should fall upon the residuary estate in preference to the specific devises, unless a contrary intention appears from the will.</p>