79 Ind. App. 578 | Ind. Ct. App. | 1923
On July 27, 1896, John W. Price being the owner of 328 acres of farm lands, including the tract in controversy, executed his last will. By item one, he directed the payment of his debts. By item two, all of his property both personal and real that remained after the payment of his debts he gave to his wife, Susanna Price, “to have and to hold, use and enjoy during the term of her natural life.” By items three, four and five he made provision for his three daughters, Frances M. Allen, Cynthia A. Bates and Mary Emily Edwards. These three items of the will are as follows:
“3. At the death of my wife Susanna Price, I give, devise and bequeath to Frances M. Allen the one-third of all my estate real and personal that may remain or exist at the death of my said wife. Should the said Frances M. Allen die before the death of my said wife, then and in that event the es*581 tate hereby bequeathed to her shall go to her children, they being my grandchildren.
“4. At the death of my wife Susanna Price, I give, devise and bequeath to Cynthia A. Bates, the one-third of all my estate real and personal that may remain or exist at the death of my said wife. Should the said Cynthia A. Bates die before the death of my said wife then and in that event the estate hereby bequeathed to Cynthia A. Bates shall go to her children they being my grandchildren.
“5. At the death of my said wife Susanna Price, I give, devise and bequeath to my daughter Mary Emily Edwards, the one-third of my estate, real and personal, that may remain or exist at the death of my said wife, to have and hold during the term and period of the natural life of the said Mary E. Edwards, should she die without lawful issue. Should she the said Mary E. Edwards have lawful issue alive at the time of her death, then the estate hereby bequeathed to her during her natural life; shall go to such of her lawful issue as may then be living. If at the death of the said Mary E. Edwards she leaves no children surviving her, then and in that event the estate hereby bequeathed to said Mary E. Edwards shall go to the said Frances M. Allen and Cynthia A. Bates in equal parts and should they or either of them be dead at that time, then the share that would have gone to them or either of them if alive, shall go to their children they being my grandchildren.”
By the remaining item, the testator named his executor.
In September, 1896, following the execution of the will, John W. Price died leaving the above named persons as his widow and only children. The will was probated, and in October of the same year, having elected to take under the will, the widow and the three daughters made a settlement among themselves by which they agreed that the lands devised to them by the will should be partitioned among the three daughters; and, to carry out the agreement, the daughters, without any consideration except the mutual agreement to partition their
The surviving children of Cynthia A. Bates, asserting that they were the owners and entitled to possession of the undivided one-half of the real estate claimed by appellant, commenced this suit against appellant for partition and to quiet title. Appellees, Ada Bates and Luemma Bates, were made parties defendant to answer as to any interest they might have in the land.
The court found the above facts, and stated its conclusions of law thereon in favor of appellees. By its conclusions of law the court, in effect, held: (1) That item 5 of the will of John W. Price gave to. Mary Emily Edwards a life estate in the undivided one-third of the real estate devised by the will, such life estate to commence at the termination of the life estate devised to Susanna Price; (2) since Mary Emily Edwards died without issue, after the death of Cynthia A. Bates, the children of Cynthia A. Bates took, under item 5, the undivided one-half of the real estate devised by item 5 for life; (3) under item 5, Mary Emily Edwards took no interest in the real estate devised to her which descended to her husband; (4) the partition deeds of Frances M. Allen and Cynthia A. Bates and their husbands gave to Simpson Edwards no interest in the land conveyed except for and during the lifetime of his wife Mary Emily Edwards; (5) now that his wife is dead, the interest of appellant in the land in controversy consists only of the portion conveyed to him by the children of Frances M. Allen, and that conveyed to him by Medford Bates; (6) that Ada Bates and Luemma Bates have no interest in the land; and (7) that appellees Huston Bates, Ella Bates Curtis, Wesley Bates and Nellie Bates McKinley are the owners and entitled to pos
Appellant’s exceptions to the conclusions of law present the only errors assigned, and not waived.
It is well settled that a mere partition of land among cotenants by the exchange of partition deeds, without any consideration other than the mutual agreement to divide their interests, does not vest in the grantees of such deeds any additional title or estate in the land partitioned. The partition thus made merely severs the unity of possession. Dodd v. Shanton (1910), 45 Ind. App. 877, 90 N. E. 1041; McKern v. Beck (1920), 73 Ind. App. 92, 126 N. E. 641; Cottrell v. Griffiths (1901), 108 Tenn. 191, 65 S. W. 397, 57 L. R. A. 332, 91 Am. St. 748; Berry v. Seawall (1895), 65 Fed. 742, 13 C. C. A. 101; Carter v. Day (1898), 59 Ohio St. 96, 51 N. E. 967, 69 Am. St. 757. The fact that the deeds exchanged by cotenants in effectuating an agreed partition are deeds of general warranty does not change the rule. Davis v. Agnew (1887), 67 Tex. 206, 2 S. W. 43, 376; Chace v. Gregg (1895), 88 Tex. 552, 32 S. W. 520; Lang v. Coil (1919), 104 Nebr. 15, 175 N. W. 657.
At the time the partition deeds were executed, Mary Emily Edwards was vested of whatever title or estate was devised to her by the will, and no part of her title or estate was, or could have been, conveyed by the partition deeds executed by her sisters. They did not have it to convey. The deeds of Mary Emily Edwards and husband to the sisters were not conveyances of the interest devised to Mary Emily Edwards, but amounted merely to a consent on the part of herself and husband that the grantees might take certain portions of the land as their respective shares in the partition * and, since Mary Emily Edwards did
It is urged by appellant with much earnestness, however, that under the will his wife took a fee, and not a life estate, in the land devised to her, and that he being the only heir of his wife, the fee at her death came to him by descent. The contention is that under item 5 of the will the fee of the real estate devised was vested in Mary Emily Edwards for two reasons: (1) That the rule in Shelly’s Case, 1 Coke 88, applies; (2) that the limitation over to “such of her lawful issue as may be living,” etc., suspends the power of alienation, in violation of §3998 Burns 1914, §2962 R. S. 1881, and is, therefore, void.
The rule in Shelly’s Case is the law of this state, and in all cases where it is applicable it will be enforced; but, since its operation must frequently defeat the intention of a grantor or testator, the courts of this state, as in other jurisdictions, are inclined to circumscribe its operation within the strict limits of its own boundary. McIlhinny v. McIlhinny (1894),
The testator, in the item under consideration, gave to Mary Emily Edwards a life estate, but provided that if she “have lawful issue alive at the time of her death,” then the estate devised to her for life should “go to such of her lawful issue as may then be living;” that if she “leaves no children surviving her,” then the estate to go to the other daughters of testator, or if they be dead to their children. In the absence of explanatory words showing that the word “issue,” when used in a devise, was used in a restrictive sense, it will be construed as a word of limitation. Allen v. Craft (1887), 109 Ind. 476, 481, 9 N. E. 919, 58 Am. Rep. 425. If, however, the language of the will in which the word “issue” is used shows that it is to be applied only to children or descendants of a particular class, it will be construed as a word of purchase, and not of limitation, in order to effectuate the intention of the testator. Robins v. Quinliven (1875), 79 Pa. 333. In its primary sense, the word “children,” when used in a devise, is always a word of purchase, and not a word of limitation. Nelson v. Davis (1871), 35 Ind. 474; Sorden v. Gatewood (1848), 1 Ind. 107.
The devise in item 5 of the will does not suspend the power of alienation in violation of the statutory rule of this state. All devisees who by any possibility could take were, at the time of the testator’s death, and at all times thereafter, in being, except the contingent remaindermen described as the possible issue of Mary Emily Edwards, and they would, of necessity have to be alive at her death. That does not contravene the statute. §3998 Burns 1914, supra; Page, Wills §631.
The intention of the testator, as expressed by item 5 is not in doubt. He intended that after the termination of the life estate which by item 2 of his will he had devised to Susanna Price, then his daughter Mary Emily Edwards should have a life estate in the undivided one-
Mary Emily Edwards having survived her mother, she came into possession of, and held, the life estate until her death; and, since, she survived her sisters, and died childless, the fee of the undivided one-half of the one-third devised to Mary Emily Edwards for life became absolute in the children of Cynthia A. Bates. It follows, as found by the trial court, that the only interest appellant has in the undivided one-half of the real estate devised by item 5 which was to go to Cynthia A. Bates or her children, if Mary Emily Edwards died childless, is that which was conveyed to him by Med-ford Bates.
The court found and adjudged that Ada Bates and Luemma Bates had no interest, and from the judgment they have not appealed. It will not, therefore, be necessary for us to review the holding of the court in that regard.
No children of Frances M. Allen were parties to the suit in the trial court, and none in this court. It would seem from the record that they are making no claim to any part of the land in controversy, but are treating, and desire to treat, the warranty deeds executed- by them as having conveyed to appellant any interest they had in the real estate at the time the deeds were executed, or which they may have acquired thereafter. It is not, therefore, necessary for us to decide whether or not the deeds conveyed their after-acquired interests.
We find no error.
Affirmed.