45 Ind. App. 340 | Ind. Ct. App. | 1910
On November 23, 1887, William A. Kellar departed this life testate, and owning certain lands in Howard county. He left surviving him a widow, three
“I will and devise that at the death of my beloved wife, Susan M. Kellar, that all my said property herein devised then remaining shall be disposed of as follows, to wit: That William A. Smith and Henry L. Smith, my grandsons, be each given and paid the sum of $400, and the same is hereby made a charge upon my said real estate, not mentioned in item first of this will, but in no event to be paid until after my beloved wife’s death. And at her death, after the payment of said sums of $400, as herein provided, for the rest and residue of my property to be divided among my children then living and their descendants, such grandchildren, or great grandchildren, as the case may be, to take a parent’s part only; Provided, that said William A. Smith and Henry L. Smith are only to have said sum of $400 each in any event. ’ ’
The question presented here is whether the remainder over in said real estate vested in the children of testator at the time of the testator’s death,' or whether it was a contingent remainder until the death of the widow, Susan M.
The only cases that have been cited by appellants as directly having a contrary effect are Corey v. Springer, supra, and Wood v. Robertson (1888), 113 Ind. 323. As we view the case last cited, it can hardly be considered as an authority or precedent here. The will under consideration in that case gave a life estate to the widow, and at her death the property was to be divided equally, share and share alike, among testator’s children then living, and the descendants of such as might be dead. The question for decision was whether the descendants of a child that had died took per stirpes or per capita. But in the course of the opinion the court discussed the question as to whether the remainder over was vested or contingent until the death of the widow, and on this point the court uses this language: “The testator intended by this will to devise to his wife an estala For life, and to give his children living at her death, and the descendants of such as were then dead, a vested i'emainder. * * * Our reason for assorting that the estate
Tt will be observed that the remainder over was determinable by one of two contingencies, either of which might not happen, viz., her remarriage or death without remarriage. In one ease the interests of the remaindermen might be essentially different from what it would be in the other, and in the nature of things these interests could not be definitely determined until the death of the widow. The testator specifically fixed the time when these interests should be measui’ed, and designated the parties who should partake as of the time when such distribution should be made. The will in that case provided:
“If any of my children shall be dead at the time of such distribution or disposition, leaving children, such children are to take the share of their deceased father or mother, as the case may be.”
And as was held in the ease of Campbell v. Bradford, supra: ‘ ‘ This language clearly shows that the words of survivorship used in the Springer will referred to the death of any of his children at any time before the death of his widow if she survived him, as was held in that ease.” No such definite language is found in the will in this case.
Judgment is therefore affirmed.