79 Ind. 402 | Ind. | 1881
— This was an action to recover the possession of the northwest half of donation lot, No. 158, in township three north, of range eight west, in the county of Daviess. There was a judgment by default against the defendant Cunningham, which was set aside by the court. One of the errors assigned in this appeal is the action of the court in that respect. The affidavit, upon which the default Avas set aside, showed that said defendant lived in Morgan county, eighty miles from the place where the court Avas held; that the default was taken on the third day of the term; that on that day said Cunningham, in the morning, reached Washington, and was then informed by some of the parties to th9 action, that it could not be tried that term because the judge of the court had been counsel for some of the parties; that the land in controversy had been conveyed to him by warranty deed by William Helphenstine, his co-defcndant, who had promised to defend his title, and had employed counsel to defend it; that when the default Avas taken affiant had left the court room to go in search of Helphenstine in reference to his defence; that he fully relied on said Helphenstine to attend to said defence, and for that reason, and also because said judge had been counsel for some of the parties, and he had been informed that on that account there would be no trial at that term, was not ready; that he had a meritorious defence to the action, to wit: That he was the OAvner of the land in controversy. Wherefore he asked that the default be set aside and that he be permitted' to plead. There Avas a counter affidavit, which, however, did not controvert any of the foregoing facts, but merely showed that the default Avas taken in the regular course of legal proceedings.
The appellant insists that, the default having been regu
-It was admitted on the trial, that Joseph Cruse died seized of the land in controversy, and that the appellants were his only heirs; as such heirs they claimed the land; the appellees claimed the land under the last will of said Joseph Cruse. The land was described in said will as follows: “ Part of the donation lot number 158, in township number 3 north, of range number 8 west, containing 200 acres.”
The appellants claim that this description is so uncertain that the devise was void. This is the principal question in the case. In the construction of a will the object is to ascertain the testator’s intention, and to that end all the provisions of the will relating to the subject under consideration must be consulted. Lutz v. Lutz, 2 Blackf. 72; Kelly v. Stinson, 8 Blackf. 387; Jackson v. Hoover, 26 Ind. 511; Schori v. Stephens, 62 Ind. 441. And parol evidence may be resorted to, to prove the testator’s intention, by showing the meaning of the language he has used and the subject to which that language refers. Grimes’ Ex’rs v. Harmon, 35 Ind. 198. Therefore, under a devise “ of all my real estate,” it may be shown what the testator’s real estate was. Dunning v. Vandusen, 47 Ind. 423; Petro v. Cassiday, 13 Ind. 289. So, where the devise was “ of my farm, situated in Lancaster township, and county and State aforesaid.” Lindsey v. Lindsey, 45 Ind. 552. Or, “the eighty acres whereon the house and barn and most of the improvements are of the home place.” Fraizer v.Hassey, 43 Ind. 310. Or, “ the farm on which we now reside.” Heagy v. Cheesman, 33 Ind. 96. In such cases the words of the will are not changed; the parol evidence merely identifies the subject. But
In the case at bar, the testator had no heirs except his father and one brother. He bequeathed nearly all his real estate, including the land in controversy, to Charity Lodge No. 30, of Free and Accepted Masons, in Washington, Daviess county, for the purpose of building a Masonic lodge on certain specified lots, with power to sell all the other lots. The parol evidence, which was admitted over appellants’ objection, showed that donation lot No. 158, in toAvn three north, of range eight Avest, Avas estimated to contain about 400 acres, in
Under the authority of the cases hereinbefore cited, the parol evidence was properly admitted, and it showed very clearly that the property devised by Joseph Cruse to Charity Lodge No. 30 was the same half of said donation lot which is sought to be recovered in this suit. The court committed no error in admitting the will in evidence, nor in admitting the parol evidence in explanation of it.
This evidence defeated the appellants’ action, by showing that they had no title. It was not necessary that the defendants should show title in themselves. They undertook to do it, and offered in evidence certain deeds which were admitted over the objection of the appellants, but whether-these deeds were admissible or not, it is not necessary to determine. The will, and the parol -evidence in connection therewith, showed a want of title in the appellants, so that the finding is supported by sufficient evidence, and is not contrary to law. The judgment of the court below ought to be affirmed.
Pee Cubiam. — It is therefore ordered, upon the foregoing opinion, that the judgment of the court below be, and it is hereby, in all things affirmed, at the costs of the appellants.