28 Ind. App. 443 | Ind. Ct. App. | 1902
John C. Springer, as administrator with the will annexed of Alma M. Calvin, deceased, brought this action against the appellants, legatees under the will of said decedent, and heirs at law, for the construction of the will of said testator. Omitting the items one, two, four, and five, Avhich are not material for consideration, the will is as follows: “Item 3. I give and devise all the residue of my estate to my daughter, Bertha Calvin, except the articles hereinafter mentioned. * * * Item 6. It is my will, and I also direct, that in case my daughter dies before she arrives at the age of twenty-one years, or dies without issue, that my estate be equally divided between my mother and two sisters; one-third to my mother, Lucinda McCaslin; one-third to my sister Alma McCaslin; and one-third t® my sister Carrie McCaslin. Item 1. I do hereby nominate and appoint my uncle, John C. Springer, guardian of my daughter, Bertha Calvin, until she arrives at the age of twenty-one years, or until she intermarries. Item 8. I do hereby nominate and appoint my uncle, John C. Springer, executor of this my last will and testament, hereby empowering him to adjust, release, and discharge in such manner as he may deem proper the debts and claims due me. I also authorize him, if it becomes necessary in order to pay my debts, to sell at private sale all or any part of my personal property. It is also my will that my executor give no bond for the execution of this my last will and testament.”
The testatrix died in December, 1886. At the time of
The trial court held: (1) The interest of Bertha Calvin was a conditional or determinable bequest, subject to be devested provided said Bertha Calvin should die before slie arrived at the age of twenty-one years; that said Bertha departed this, life under the age of twenty-one years. (2) Tha-t the interest of Alma McCaslin was a contingent bequest or executory devise, which was and is such a vested interest transmissible from her to her legal representative, and that the said Alma McCaslin having died subsequent to the death of the testatrix, the one-third of said amount passes to the legal heirs of Alma McCaslin; that said amount now in the hands of the administrator ought to be. distributed as follows: After payment of expenses of administration of the sum then remaining in his hands, he should pay one-third to Lucinda McCaslin; one-third to Carrie McCaslin, now Carrie Brown; and one-third to the heirs at law of said Alma McCaslin, deceased.
Appellant’s motion for a new trial upon the ground that the decision was contrary to law was overruled. This action of the' court was assigned as error. Appellant’s position is that (1) by virtue of item three of the will in ques
The primary purpose in construing a will is to ascertain the intention of the testator. Such intention of the testator must be given effect if it is not in violation of some rule of law. Langman v. Marbe, 156 Ind. 330; Mulvane v. Rude, 146 Ind. 476; Wood v. Robertson, 113 Ind. 323; 4 Kent’s Com. (14th ed.) 534. In ascertaining such intention effect must be given to every part of the will, if possible. Moore v. Gary, 149 Ind. 51; Nading v. Elliott, 137 Ind. 261; Ewbank v. Smiley, 130 Ind. 393; Kilgore v. Kilgore, 127 Ind. 276; Beach on Wills, p. 517; 4 Kent’s Com., supra.
Considering the whole will, it is clear the trial court reached the right conclusion. We do not overlook the rule that where an -estate in fee simple is devised in one clause it can not be cut down by a subsequent clause, or by any subsequent words which are not as clear as those giving the estate. Underhill on Law of Wills, §§358, 682. But where the subsequent provisions distinctly show an intention to give an estate less than a fee simple, such intention must control. O’Boyle v. Thomas, 116 Ind. 243; Ross v. Ross, 135 Ind. 367; Mulvane v. Rude, supra; Rogers v. Winklespleck, 143 Ind. 373; Fenstermaker v. Holman, 158 Ind. —.
In the case before us it is clear that it was not the intention of the testatrix that all the residue of her estate should
As to appellant’s second proposition, that by the death of' Alma McCaslin prior to the death of Bertha Calvin no part of said estate vested in Alma, and that by inheritance it passed to appellant as father and only heir at law of Bertha, we are of the opinion that Alma McCaslin being alive at. the time of the death of the testatrix took under said will a contingent bequest or executory devise, which was a vested interest, transmissible, as held by the trial court. 2 Redfield on Wills, p. 245, §51; 1 Redfield on Wills §§16, 17, 18, p. *388; Barnitz v. Casey, 7 Cranch 456, 3 L. Ed. 403. Authorities cited by appellant are not inconsistent with this opinion.
Judgment affirmed.