165 N.E. 435 | Ind. Ct. App. | 1927
Leonidas Ames died testate survived by his widow, Martha J. Ames, who had been his childless second wife, and his son, Andrew L. Ames, who was by the court appointed administrator with the will annexed of testator's estate. Before the estate was settled, the widow died intestate, leaving as her only heir at law Bessie A. Conry, who was appointed administratrix of *151 her mother's estate. At the time of his death, Leonidas Ames was the owner in fee simple of sixty-nine acres of real estate and of personal property of the approximate value of $10,000.
The question presented by this appeal relates to the disposition to be made of the personal property of the estate of Leonidas Ames which remains in the hands of appellant as administrator with the will annexed, and involves the construction of the testator's will.
The only items of the will by which testator disposed of his property are Items 1 and 2, which are as follows:
"I. I bequeath to my beloved wife, Martha J. Ames the rents and profits during her natural life of the following described real estate: . . . and at her death the possession and rents and profits of said above described real estate shall revert to my heirs then in being.
"II. I hereby bequeath to my wife Martha J. Ames ten shares of the stock in the First National Bank of Michigan City, Indiana. As to the remainder of my estate, it is to go to my legal heirs then in being, share and share alike."
By Item 1, testator disposed of nineteen acres of his real estate. He gave to his wife the rents and profits thereof during her natural life, stipulating that the possession and 1, 2. rents and profits should at his wife's death revert to his heirs then in being. It has many times been held by courts of last resort, and is well settled, that a devise of the rents and profits of real estate is in effect a devise of the real estate for life. Earl v. Rowe (1853),
By Item 2, testator first gave to his wife ten shares of bank stock, and then disposed of the residue of his property, which, as the record shows, included fifty acres of land and personal property of the probable value of $9,000. The record further shows that testator was ninety years of age at the time of his death, and that Martha J. Ames, who had been testator's wife for more than twenty-five years, was about seventy years of age. It also appears that testator's step-daughter, Bessie Conry, was a child of four years at the time of her mother's marriage to testator, and had been reared as a member of testator's family.
The important question for determination is as to the time to which the word "then" as used in Item 2 refers. Does it refer to the time of testator's death, or to the time of the death 3-6. of testator's widow? It is urged by appellant that it refers to the time of the widow's death. On the other hand, it is contended by appellee, and the trial court held, that the testator intended that the property disposed of by the residuary clause incorporated in Item 2 should go to testator's heirs who were living at the time of his death. It is conceded by appellant that if appellee is right in her contention, and the judgment of the trial court is affirmed, then, subject to the inheritance tax, the residue of the personal estate of Leonidas Ames must be divided equally between appellant and appellee. If Item 2 stood alone — if that were all of the will, no one would contend that the words "my legal heirs then in being" referred to testator's heirs in being at the time of his wife's death. Clearly, the words could refer only to testator's death. It is argued by appellant, however, *153
that since the words "heirs then in being," as used in the first item of the will, can, under the wording of that item, refer only to those heirs who might be in being at the time of the death of Martha J. Ames, it necessarily follows that the words "heirs then in being" as used in the second item must have the same meaning, and refer to the same time. In support of this contention, appellant asserts that it is a rule in the construction of wills that if a testator uses a given word in one part of his will with a certain meaning, it will be presumed that in using the same word in another part of his will he intended it to have the same significance. The rule referred to is not so broad. More accurately stated, the rule is that words occurring in a will more than once, and which are applied to the same subject, will be presumed to be used always in the same sense, unless a contrary intention appears from the context. State Bank v.Ewing (1861),
A further contention of appellant is that the widow of Leonidas Ames was not his heir as to the personal property, and that by the use of the words "my legal heirs," he did not intend 7, 8. that any part of the personalty disposed of by the residuary clause of his will should go to his widow. It is true, of course, that at common law the widow was not the heir of her husband, either as to real estate or personal property. The widow's estate in dower was a marital right, not an inheritance, and personal property was, in the early days of England, cast on no one at the death of the owner; such property was seized by the king, by whom it was applied to pious purposes for the good of the soul of the deceased. We have gone a long way since then, and, instead of the old common law, we have the modern statutes of descent and distribution. It has frequently been held by the Supreme Court of this state that the real estate conferred upon a widow by statute is taken by her as heir of her husband. State, ex rel., v. Mason (1863),
In the will under consideration, there is nothing to indicate that the testator intended that his widow should not be included by the words "my legal heirs." Had testator died intestate, 9. then, under the statute (§ 3344 Burns 1926), the widow would have received one-half of his personal estate. If the will is to be interpreted as contended for by appellant, the widow would receive no part of the personal estate except the ten shares of bank stock; the remainder, about $9,000, would go to testator's son. In view of the fact, as shown by the record, that the widow was twenty years younger than testator, and had lived with him for twenty-five years, taking care of him in his extreme old age, it *156
seems incredible that he would give to her but $1,000 of his $10,000 estate in personal property. If it could be said that there is doubt as to what testator intended by the words "my legal heirs" as used in Item 2 of his will, then would be applicable the rule that in case of doubt as to the construction of a will, that construction will be preferred which gives the property to those who would have inherited it if there had been no will. Hancock, Trustee, v. Maynard (1920),
Frequently, in other jurisdictions, courts have had under consideration the use of the word "heirs" in a bequest. Among the well-considered cases is Houghton v. Kendall (1863), 7 Allen
In Swasey v. Jaques (1887),
It has many times been held by courts of last resort, both in this country and in England, that a bequest of personal property to the "heirs" of the testator embraces those entitled to take under the statute of distribution, including the widow of testator, Eddings v. *157 Long (1846),
In harmony with the above and foregoing authorities, and in the light of the circumstances which surrounded the testator at the time he executed the will, we hold that by the words "my 10. legal heirs," as used in the residuary clause, the testator intended to, and did, include all persons who would have taken the property under the statute of distributions, if he had died intestate. The widow being one who would have taken under the statute, she was necessarily included.
Affirmed.
