No. 6,817 | Ind. Ct. App. | Oct 13, 1908
Maggie Cunningham Twyman was, during her life, the owner of the premises that are in controversy in this ease, together with other real estate in the city of Indianapolis. She died testate in August, 1904, leaving as her survivors her children, Katy Twyman, James E. Twyman, Harry Cunningham, and the appellant’s wife, Annie, the appellees in this case. Her will contained, among other provisions; the following:
“Item 6. I give, bequeath and devise to my daughter, Annie Aneshaensel, my property known as No. 434 and No. 438 East Wabash street, described as follows: Fifty feet off the south end of lot four in Coe’s subdivision of square forty-one, in the city of Indianapolis: Provided, that in ease of her death the same property shall be sold and proceeds divided equally between my other surviving heirs. ’ ’
This will was duly probated, and no question arises as to its validity, and none of its other provisions affect the question to be decided here. The devisee, Annie Aneshaensel, survived the testator, and died intestate on July 22, 1906, leaving surviving her no children or their descendants, no
The controversy arises over the construction of this clause of the will, the appellant claiming that it gave to Annie Aneshaensel a fee-simple title to the land; the appellees claiming that she took but a life estate, and that upon her death the property was to be sold and its proceeds divided among them. The question arises upon exception taken to the conclusions of law stated by the court upon a special finding of facts, and is the only question involved in the appeal.
The terms of this clause of the will were sufficient to pass the fee to the devisee named, unless the proviso,
.“in case of her death the same property shall be sold and proceeds divided equally between my other surviving heirs,”
The clause of item six of this will that provides “in ease of her death the same property shall be sold, ’ ’ must be construed to mean what it plainly purports that, in case the devisee should die before the will took effect, that is before the death of the testator, and therefore could not take the devise, the disposition spoken of in the proviso should be made of the property otherwise devised to Annie Aneshaensel. Fowler v. Duhme, supra; Wright v. Charley, supra; Taylor v. Stephens (1905), 165 Ind. 200" court="Ind." date_filed="1905-06-23" href="https://app.midpage.ai/document/taylor-v-stephens-7055059?utm_source=webapp" opinion_id="7055059">165 Ind. 200; Moores v. Hare (1896), 144 Ind. 573" court="Ind." date_filed="1896-04-17" href="https://app.midpage.ai/document/moores-v-hare-7052792?utm_source=webapp" opinion_id="7052792">144 Ind. 573; Morgan v. Robbins (1899), 152 Ind. 362" court="Ind." date_filed="1899-03-31" href="https://app.midpage.ai/document/morgan-v-robbins-7053635?utm_source=webapp" opinion_id="7053635">152 Ind. 362; Snodgrass v. Brandenburg (1905), 164 Ind. 59" court="Ind." date_filed="1904-06-03" href="https://app.midpage.ai/document/snodgrass-v-brandenburg-7054935?utm_source=webapp" opinion_id="7054935">164 Ind. 59; Aspy v. Lewis (1899), 152 Ind. 493" court="Ind." date_filed="1899-01-31" href="https://app.midpage.ai/document/aspy-v-lewis-7053654?utm_source=webapp" opinion_id="7053654">152 Ind. 493; Hume v. McHaffie (1907), 40 Ind. App. 703" court="Ind. Ct. App." date_filed="1907-05-03" href="https://app.midpage.ai/document/hume-v-mchaffie-7064689?utm_source=webapp" opinion_id="7064689">40 Ind. App. 703; Campbell v. Bradford (1906), 166 Ind. 451" court="Ind." date_filed="1906-05-09" href="https://app.midpage.ai/document/campbell-v-bradford-7055191?utm_source=webapp" opinion_id="7055191">166 Ind. 451.
Under the rules established by repeated decisions of the courts of last resort in this State, the fee-simple title to the property in controversy passed, upon the death of the. testator, to the devisee, Annie Aneshaensel, and upon her death descended to her husband, the appellant.
The judgment of the court below is reversed, with instructions to restate the conclusions of law in conformity with this opinion.