71 Ind. App. 688 | Ind. Ct. App. | 1919
— Mary A. Lamb, by item 3 of her will, devised to her husband, William R. Lamb, and her brother, Alexander Hardy, each a life estate in certain lands therein described. Item 4 of said will is as follows:
“Item 4. Subject to the provisions of item three, in favor of my husband and my brother, Alexander, I devise the said real estate described in item three and all the real estate of which I may die the owner,, to my niece Miranda Smith of Kokomo, Indiana,- for and during the term of her natural life, or in case of her death prior to my death, or the death of my husband and brother, then at her death, or the death of my husband and brother, the fee simple of all of said real estate shall vest absolutely in Lily Smith and*690 Mary P. Smith, daughters of said Miranda Smith, as tenants by the entirety the survivor to take.the whole.”
Appellants prosecuted this suit against appellees to quiet title to eight-tenths of the said real estate, and to construe said will. Appellees are the persons named as devisees in said item 4.
The complaint alleges that the said husband and brother died seven years prior to the death of testatrix; that appellants, among others, are the heirs at law of testatrix; that said testatrix died intestate as to the fee simple of the said lands, and that the fee simple of the undivided eight-tenths thereof is in appellants. Appellees’ demurrer to the complaint for want of facts was sustained, and judgment was rendered for appellees upon the refusal of appellants to plead, further. The action of the court in sustaining the demurrer is the only error assigned.
The controversy involves the construction of item 4 of said will. It is contended by appellants that the devise to appellees Lily Smith and Mary P. Smith was, by the terms of said item 4, contingent upon the death of devisee Miranda Smith prior to the deáth of the husband and brother of testatrix; and, inasmuch as this contingency did not happen, and cannot now happen, this conditional devise failed, and that testatrix died intestate as to said real estate. On the other hand, appellees take the position that item 4 of the will must be Construed as devising the fee simple of said real estate to appellees Lily Smith and Mary P. Smith, their right of enjoyment being postponed until the termination of the life estates devised, ánd that as to said real estate testatrix died testate.
We conclude that appellees Lily Smith and Mary