140 Ind. 694 | Ind. | 1895
— Isaac Redman died testate, in Floyd county, in 1856, leaving a widow, two sons, Robert and William, two daughters, Maria Baird and Virginia Siceloff, and a grandson, Henry C. Redman, for each of whom provision was made by his will, which will is copied in full in the case of Siceloff v. Redman’s Admr., 26 Ind. 251. After certain specific devises and bequests the following disposition was made:
“I devise and'bequeath the entire remaining amount of my property, in equal proportions, to my son, Robert*695 L. Redman, and my daughters, Maria Baird and Virginia Siceloff. * * * The amount to Virginia shall be for her use and benefit during her lifetime, then to her heirs and their assigns. * * * ”
By further provisions of the will, as was held in the case cited, an executory trust in the executors was created with power to sell the real estate, of which the testator died seized, and to purchase other lands with which to fill the provisions of the will. The real estate, involved in this suit, was, under said executory trust, and pursuant to said decision, conveyed to “Virginia Siceloff for her use and benefit during her lifetime, and then to her heirs and their assigns in manner and form as prescribed by item 4th of the last will of Isaac Redman, deceased. * * * ”
Thereafter the husband of Virginia Siceloff died, and in the year 1872 she married William S. Durbin. In December, 1890, she died, leaving her husband, Durbin, surviving, but having no child or descendants of a child, and neither father nor mother surviving her. In April, 1891, said William S. Durbin departed this life, leaving the appellants as his children, and only heirs at law. This action was by the appellants to quiet title against the appellees, who succeeded in the claim that they were the owners of said real estate as the descendants of said Isaac Redman and of the brothers and the sisters of said Virginia.
It is conceded that, as decided in Siceloff v. Redman’s Admr., supra, the rule in Shelley’s Case has no application to the questions here presented, and, necessarily, that said Virginia, held but a life estate in said lands. It is necessary, therefore, to treat the word “heirs,” employed in the will, and the deed, as one of purchase and not of limitation.
It is manifest that William S. Durbin did not take
By the first item of the will it was provided that the testator’s wife should receive what “the present law defines for the widow’s- dower.” By the adoption of the word “dower,” appellee’s learned counsel insists, the testator must be held to have understood that the law, as it existed prior to 1852, was still in force, and, with such understanding, that he employed the word “heirs,” in subsequent items, in the common law sense and as implying those born in lawful matrimony, and succeeding “by descent, by right of blood and by act of God” to* the estate of their ancestor. It is true that with the act of 1852 tenancies in dower were abolished, but, even to-
Item two of the will provided an estate for William “during his life, and for-his wife, should she outlive him, so long as she remains a widow, then to belong to said William’s heirs and their assigns.” By the third item, Henry 0., the grandson, was given an estate for his life, and “then to his heirs and assigns.” By thefourth item, above quoted in part, Maria was given an estate for life, and “then to her heirs and assigns.” It is claimed that in each of the instances given, the word “heirs” was employed as indicating “children,” and, therefore, disclosing the sense in which it was used in the devise to Virginia.' In no instance does the will disclose that any devisee was possessed of children, and it would be as difficult to discover the intention so claimed, in these instances, as in the devise to Virginia.
By the sixth item, it was directed that the testator’s real estate in Louisville should not be disposed of without the consent of the executors, but that the rents should “be divided between my heirs, according to justice, taking this my will for the criterion for division.” By the seventh item the testator said: “My heirs” shall not enforce a sale or division of the real estate for ten years.
It is insisted that by these provisions the testator in-
This conclusion leads to a reversal of the judgment of the circuit court, and the same is therefore reversed, with instructions to sustain the motion for a new trial and for further proceedings in accordance with this opinion.