62 Ind. App. 460 | Ind. Ct. App. | 1915
Lead Opinion
Appellees joined in a demurrer to appellant Hazel L. Gibson’s amended complaint, and also to the respective cross-complaints of the other appellants, Weir W., Gladys Rena and Orville W. McMillan. The demurrer to each pleading was sustained, and appellants refusing to plead over, judgment was rendered against them, from which they appeal, each assigning error on the sustaining of the demurrer to his pleading.
A review of the rulings of the court involves a construction of the last will and _ testament of Woster McMillan, in its relation to the nature of the estate in lands thereby created in his son, Alonzo C. McMillan. The complaint and cross-complaints to which demurrers were sustained are practically identical in facts alleged, and are substantially as follows: Woster McMillan died testate in Steuben County, in February, 1881, the owner in fee of the southeast quarter of section 13, township 36 north, range 13 east in said county. He left surviving him as his only heirs at law his widow, Mary McMillan, and his children, Mary E. Van Auken and Alonzo C. McMillan, who were also the children of Mary McMillan, his widow. His last will, omitting introductory and concluding matter, is as follows:
*463 “I desire all funeral expenses and doctor bills to be paid from my personal property, all other demands are then to be paid in full.. My accounts and debts are very few and I desire to have them all honorably and fully settled.
“The residue, both real and personal shall become the property of my companion, my kind, loving, faithful wife, Mary McMillan, for the term'of her natural life. At her death, I desire an equal division to be made of it between my daughter, Mary E. Van Auken, and my son, Alonzo C. McMillan, and it is my desire further that the portion of realty that shall fall to the aforesaid Alonzo C. McMillan, shall consist of the west 80 of the southeast quarter of section thirteen (13) N. Range 13 east Tp. 36, and that it shall be held by him not in fee simple, but in trust for the heirs of his body. I desire this land to be divided by even acres without regard to cash value.
“I desire no litigation after my death with regard to the disposition of my property, and should any of the heirs and legatees under this will begin such proceedings, then that one shall forfeit all claims whatsoever, and not receive any benefit from any part of my estate.”
It is further alleged that the widow, by regular proceedings, elected to take the provisions made for her by statute rather than under her husband’s will. Thereafter at the September term, 1882, of the Steuben Circuit Court, she, as sole plaintiff, filed her complaint for the partition of the lands of which her husband died the owner, alleging in effect that she and her two children were the owners of such lands in equal parts in fee simple as tenants in common. She named as the only defendants to the proceeding, Mary E. Van Auken and husband and Alonzo C. McMillan and wife. The parties to this appeal were not parties to that proceeding. The action for partition resulted in a judgment that the
The respective pleadings of appellants contain the following further allegations by way of deduction from facts averred: Hazel L. Gibson alleges
Proceeding with the analysis, the only possible controversy that could arise from a consideration of the quoted provision of the will now under consideration involving the nature of the interest or estateinlands thereby created is, aswehave indicated, respecting the quantity of such interest or estate; that is, whether the estate thereby devised to Alonzo C. McMillan is for life or in fee. In such quoted language there is no suggestion of an estate or interest in trust as distinguished from one devised to Alonzo C. McMillan as an individual. The thought in the testator’s mind may thus be traced through the will: “In creating an estate in behalf of my son, I have used language indicating a plain intention that the quantity of such estate shall be either for life or in fee, but perhaps I have left it uncertain as to which is my purpose. I must remove this uncertainty by some appropriate expression. I shall say plainly that I do not intend for it to be a fee.” He then, by the next expression in his will, gives life to such intent. This expression is as follows: “And it shall be held by him not in fee simple.” The antithesis of an estate in fee simple is some estate less in quantity. The antithesis of an estate devised in trust is one devised for the individual or personal use and benefit of the devisee. As we have said, the language of the will first quoted and discussed carries with it no suggestion of an estate in trust. It suggests only an estate for the personal benefit of the devisee. If the testator in fact had in mind that the estate created should be in trust for the use of others, and if it was his purpose so to declare, and to preface his declaration with eliminating language, he did not use apt words to that end. If it was his purpose to create an
Woodrum v. Kirkpatrick (1852), 2 Swan (Tenn.) 218, is in point on a number of questions involved here. There the testator provided by his will that certain chattel property should be divided equally among his children, and that “the portions or lots which are or may be assigned to * * *, my daughters, shall, be held by them for the benefit of the heirs of their bodies, not subject to be sold, bartered or traded by their husbands.” In holding that the
The judgment is affirmed.
Rehearing
On Petition for Rehearing.
We' do not overlook the fact that the language of the will is “not in fee simple, but in trust” etc., and that such language apparently creates an antithetic relation between an estate in fee simple and an estate in trust. Such conclusion, however, results only from a superficial examination of such language, disassociated from what precedes it. An estate in trust is not and can not be made the antithesis of an estate in fee simple. The one expression has reference to the quality of the estate;
However, a deduction conditionally made by the original opinion to the effect that any other interpretation of the will than as therein and herein indicated would result in partial intestacy, is possibly not Justified. On the assumption that the testator intended to create an estate in trust rather than an estate for the individual benefit of Alonzo C. McMillan, the phrase “not in fee simple” should probably he held not to reduce the estate imported by the preceding language, but rather as used antithetically to the phrase, “but in trust.” On such assumption, the estate in trust, if created, would be in quantity a fee. Such assumption, however, as we have indicated, is not allowable. In effect, we applied the rule in Shelley’s Case in the original opinion in arriying at the conclusion that the will created in Alonzo C. McMillan an estate tail, and that such estate, by virtue of the statute, became a fee simple. It follows that the argument that we ran counter in part to the actual
Petition for rehearing overruled.
Note. — Reported in 110 N. E. 716, 112 N. E. 894. See under (1), (3) 40 Cyc 1575, 1577; (2) 40 Cye 1607; (9), (10) 40 Cyo 1595-1602.