138 Ind. 506 | Ind. | 1894
This action involves the construction of the last will of Gabriel Springer, deceased. Said Gabriel Springer died testate in 1871, leaving as his only heirs at law, his wife Hannah Springer, his son John J.
The defendants, Oscar Miller and Roy H. Miller, by their guardian ad litem, William J. Henley, and Perry F., Wesley F., and Jesse T. Bromlett, by their guardian ad litem, Lot D. Guffin, have filed their answers thereto, setting up the will of said Gabriel Springer. The controversy which arises upon demurrer to the! answer is, what was the nature of the estate devised by said Gabriel’s will to John J. Springer, appellant’s testator? The items of the will which call for construction are the third and fourth. They are as follows:
‘ ‘Item third. It is my will, after the payments aforesaid are made, and after the expenses of administration are all paid, that my wife, Hannah Springer, if she shall survive me, and remain my widow, shall have the use of all the remainder of my estate, both real and personal, during her lifetime, and I accordingly bequeath the same to her as aforesaid, to be kept and used by her during the time of her natural life, if she so long remain my widow; but in case of her marriage after my decease,
“Item fourth,. At the death of my wife, if she shall not marry again, I bequeath all my property, share and share alike, to my children. 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. In case my wife should again marry, and so take the provision herein made for her, in that event, under the law of Indiana, I bequeath the remainder of my estate, real and personal, to my children, and to the representatives of such as may be dead, if any, as provided in the former part of this will.”
As we understand the contention, appellant insists that by the terms of the will, the widow, Hannah Springer, took an estate for life in the lands in controversy, and that a remainder in fee vested in Gabriel Springer’s children, of whom John J. Springer was one; and that such remainder in fee vested absolutely and unconditionally in said John at the time of his father’s death. Appellees assume, upon the contrary, viewing the matter aside from the attempted limitation concerning, or with respect to marriage, that after carving out a life estate for his widow, it was the manifest intention of the testator, by the terms of his will, to give to his children living at her death, and to the descendants of such as were then dead, a vested remainder; that the testator appointed a fixed time when the conditional fee should ripen into an absolute fee in his children; a time when the division or distribution, as he styles it, should take place, and
Courts, in giving an interpretation to a will, may place themselves in the situation of the testator, examine the surroundings, and-then, from the language used, arrive at his intention. Jackson v. Hoover, supra; Price v. Price, 89 Ind 90.
In the light of these rules it is proper to consider the language employed by the testator, and ascertain its force and significance. Aside from the provisions made in the event of the widoMr’s marriage, the third item of the will devises an estate for life to his widow. The fourth item then -reads: “At the death of my wife I bequeath all my property, share and share alike, to my children. If any of my children shall be dead at the timejof such distribution or disposition, leaving children, such children are to take the share of their deceased father or mother, as the case may be.”
Here the testator, in language clear and unmistakable as could be employed, fixes the time for “such distribution” or final disposition to occur, viz., “at the death of his widow.” Until this event shall happen, he holds the fee conditional and in abeyance, subject to alteration, and only to ripen and fasten absolutely in his children surviving at the death of his unmarried widow. Appellant’s counsel state the rule correctly, that “the law favors vested estates, and remainders will never be held to be contingent when they can consistently, with the intention of the testator, be held to be vested. Words of survivorship, generally, in the absence of an expressed or implied intention to the contrary, are construed to refer to the testator’s death. Boling v. Miller, 133 Ind. 602; Davidson v. Bates, 111 Ind. 391; Harris v. Carpenter, 109 Ind. 540; Davidson v. Koehler, 76 Ind. 398; Bruce v. Bissell, supra.
A conditional fee may be created by will as well as by a deed. It is by no means uncommon to affix conditions to a devise, and a less estate may be granted to continue until the happening of a prescribed event, then to enlarge into an absolute fee. Shimer v. Mann, 99 Ind. 190 (198).
It is evident, in this case, that John J. Springer, by the terms of the will, took a conditional fee; that his estate'in expectancy was to enlarge and ripen into an absolute fee at the death of the widow; that he having died prior to that event his estate was.a defeasible one, which has been defeated, and there remains- no interest which the appellant, as executor, can seize upon or sell by the order of the court to pay his debts. A will ought to be so construed as to give effect to all its provisions, and make it a harmonious whole. Jackson v. Hoover, supra; Cooper v. Hayes, 96 Ind. 386; Wood v. Robertson, supra, on p. 326; Nading v. Elliott, supra; Brumfield v. Drook, 101 Ind. 190.
In this controversy between the parties, it is the contention of the appellant’s counsel, in their reply brief,. that the will must stand as if there was no provision with reference to the widow;. fhat those provisions are in restraint of marriage, and void under section 2567, R. S. 1881; Burns Rev. 1894, section 2737.
As the widow, Hannah Springer, is still living and unmarried, and JohnJ. Springer departed this life with
The judgment is affirmed.