Bowen v. Johnson

6 Ind. 110 | Ind. | 1850

Perkins, J.

This was ■ an application by a part of the heirs of John Johnson, deceased, against his remaining heirs,- for partition of the real estate of which. he died seized. The facts of the case are these:

On the 28th of December, 1830, said John Johnson made Ms will, by wMeh he devised to John JET. Johnson, his grandson, the north half of lot 126 in the town of Lafayette; and all the rest and residue of Ms estate real to William H. Johnson and John W Johnson. Afterwards, and prior to 1836, said John Johnson sold all the real estate he possessed at the time of making said will, and in October, 1836, with money derived from said sale, purchased other lands, being those of which partition was sought by the present application. Said Johnson departed tMs life on the 20th of May, 1847, never having altered said will.

William U. and John W. Johnson claim the whole of the lands of which said John Johnson died seized, under the residuary clause in the will, and hence resist the partition of them among his heirs generally.

By the English law the conveyance of all the land owned by the testator at the time of maMng his will, would have operated as a revocation of it, and those after acquired would not, by that law, have passed by the will set up in this proceeding. We have, however, the following statutory provision, which, it is claimed, governs this case, and gives the after-acquired lands of the deceased, Johnson, to the residuary devisees. It is on page 485 of the R. S. 1843, and is as follows: “ Sec. 4. Every devise that shall be made by a testator in express terms of all his real estate, or in any other terms denoting his intent to devise all Ms real property, shall be construed to pass all the real estate which he was entitled to devise at the time of his death.”

We do not think this section applicable to the case before us. We think it applies only to cases where the will purports to devise all the property equally, or in proportions, to all the devisees named in it; and not to cases where particular pieces of property are devised to particular devisees, with a residuary clause. We think that this construction will best promote justice, and is not inconsistent with the words of the statute.

Such being the case, the lands in question in this suit should be partitioned among the heirs according to the rules of descent.

J A. Wright, E. W. Me Qaughey and A. A. Hammond, for the plaintiff. W. P. Bryant and A. L. Boache, for the defendant. Per Curiam.

The decree is reversed with costs. Cause remanded, &c.