173 Ind. 279 | Ind. | 1909
Lead Opinion
Appellants instituted this suit against appellees to quiet title to real estate in Noble county, Indiana. Appellees filed cross-complaints asserting title to different parts of the land. There was a trial by the court, special findings made, and conclusions of law stated, resulting in a decree for appellees.
The errors relied on arise upon exceptions to the conclusions of law.
“Item two. I will and bequeath unto my grandson, John Horsely Hayes, son of Jarvis and Mary Hayes, deceased, the farm on which I now live [describing it], and I also bequeath to my grandson, John Horsely Hayes, $500 out of the proceeds of my personal estate. ’ ’
Item three bequeaths to his son, Richard, and to his daughter, Ann Selder, the remainder of his personal property.
Item four-appoints executors.
“Item five. I appoint said John Childs and William Selder guardians of the person and estate of my grandson, John Horsely Hayes, and I ordain that the rents and profits of the farm hereby bequeathed to my grandson, and the interest of the $500, also bequeathed to him (said money to be loaned at interest until he becomes of age), shall be exclusively set apart for his maintenance and education to be so applied at the discretion of his guardians. And I further will that if the father of my said grandson should take him from under the charge and control of his said guardians that the rents, profits and interest of the property hereby willed to him be retained by said guardians and paid to him when .he shall arrive at the age of twenty-one years, at which time the $500 willed to him is to be paid to the said John Horsely Hayes. And I further will, shall ............................ die before he attains the age of twenty-one years, the property hereby willed to him shall be equally divided between my two children, Richard Horsely and Ann Selder. And if said John Horsely Hayes shall die leaving children, the farm shall descend to them, but is not to be sold or disposed of by the said John Horsely Hayes.”
His will was probated in 1850, and this case is to be determined under the provisions of the revised statutes of 1843.
Appellants contend that under R. S. 1843, p. 424, §59, “a freehold estate, as well as a chattel real, may be created to commence at a future day; and an estate for life may be created in a term of years, and a remainder limited thereon; a remainder of a freehold, or a chattel real, either contingent or vested, may be created, expectant on the determination of a term of years, and a fee may be limited on a fee, upon a contingency, which, if it should occur, must happen within the period prescribed in this article.” A fee may be limited upon a fee, and a valid remainder is oreated by the terms of the will.
The rule against perpetuities at the common law placed the limitation at a life in being when the estate was created, and twenty-one years and nine months. Stephens v. Evans (1868), 30 Ind. 39, 51; Sears v. Russell (1857), 8 Gray 86; Brattle Square Church v. Grant (1855), 3 Gray 142, 63 Am. Dec. 725; Ould v. Washington Hospital (1877), 95 U. S. 303, 24 L. Ed. 450; McArthur v. Scott (1885), 113 U. S. 340, 383, 5 Sup. Ct. 652, 28 L. Ed. 1015.
The reason for this rule is clearly stated in 2 Washburn, Real Property (4th ed.), *358, *359. That this limit of time within which an executory interest must take effect, was no
Thus it will be seen that at common law the estate might be entailed to one not in being when the estate was created, and to posthumous children, and so by R. S. 1843, p. 425, §66, the restriction, or limitation is to a first taker in being when the estate was created, and the twenty-one years allowed by the English law are eliminated, except that a contingent remainder might be limited upon a first remainder, in ease the first remainderman failed to attain the age of twenty-one years, or upon any other contingency by which the estate might be determined before such person should attain the age of twenty-one years.
It appears from the special findings that at the time of the death of the testator and the vesting in John Horsely Hayes of whatever estate or interest he had, the latter was unmarried, and there was only a contingency that he would ever have children, or that he would arrive at the age of twenty-one years. Upon the failure to do so, and being without children, the contingent remainder to Richard Horsely and Ann Selder would have vested.
But there is an attempt to limit a remainder in fee to his children, upon his estate, and we have seen by the statute, that the fact that he had no children when the testator died was immaterial, so long as the contingency of his having children existed, and he did, as the findings show, leave children, who are appellants here. And while he alienated the land prior to the birth of children, this had no effect npon the remainder in the children, who took when and as they were born, unless this case falls within the rule that an estate in fee tail at common law, and a fee simple absolute under the statute vested in John Horsely Hayes, by reason of the failure to limit a valid remainder thereon.
It must be clear that the statute of 1843 was enacted in view of the common-law rules and in modification thereof. It is impossible, taking the whole instrument together, to arrive at any other conclusion than that the testator’s intention was that his grandson should have a contingent fee, with a contingent remainder over to Richard Horsely and Ann Selder, and in the other, remainder over to such children as John Horsely Hayes should leave at his decease, thus limiting a fee upon a fee.
In no other way can the use of the language in the will,
Appellees contend that the clear language of the will gives a fee tail at common law, and a fee simple absolute under the statute to John Horsely Hayes, and that it cannot be cut down except by subsequent language equally clear and specific. That rule of construction is well established in this State. Snodgrass v. Brandenburg (1905), 164 Ind. 59; Teal v. Richardson (1903), 160 Ind. 119; Lumpkin v. Rodgers (1900), 155 Ind. 285; Mulvane v. Rude (1896), 146 Ind. 476, 484.
But there is an equally well-settled rule, that where an estate otherwise an estate in fee simple is devised in one clause of a will in clear and decisive terms, and the subsequent provisions clearly and distinctly show an unmistakable intention upon the part of the testator to give an estate less than a fee simple, such later intention must control. Pate v. Bushong (1903), 161 Ind. 533, 63 L. R. A. 593, 100 Am. St. 287; Fenstermaker v. Holman (1902), 158 Ind. 71; Rusk v. Zuck (1897), 147 Ind. 388; Mulvane v. Rude, supra.
John Horsely Hayes alienated the land March 16, 1866. His age at the time of the execution of the will and the death of John Horsely is not found, but it is found that he was under the age of twenty-one years, unmarried, and had no children born to him until after 1866. It is found that the oldest child at the time of the trial— 1905 — was thirty-eight years of age, and the youngest twenty-six years of age, and that John Horsely Hayes died March 13, 1904. We have seen that under sections sixty-two, sixty-three and sixty-five of the act of 1843 (R. S. 1843, p. 425), the fact that he had no children when the future contingent estate was created, could not defeat the estate;
We are required in the construction of a will to consider and give effect to all parts thereof which can be done under the rules of law, and it seems the later language of the will clearly denotes the later intention on the part of the testator to create a remainder, contingent upon John Horsely Hayes’s leaving children, and this the testator might do under the statute. This later intention, being inconsistent with the first clause, is controlling. Sturgis v. Work (1890), 122 Ind. 134, 17 Am. St. 349; John v. Bradbury (1884), 97 Ind. 263; Butler v. Moore (1884), 94 Ind. 359; Critchell v. Brown (1880), 72 Ind. 539; Holdefer v. Teifel (1875), 51 Ind. 343; Evans v. Hudson (1855), 6 Ind. 293; Kelly v. Stinson (1847), 8 Blackf. 387; 3 Jarman, Wills (5th Am. ed.), 705; 1 Redfield, Wills (4th ed.), *443; Page, Wills, §470.
The ease does not fall within the rule of Snodgrass v. Brandenburg, supra, for the fourth clause in that will was simply in the nature of a request for an equal division among the testator’s children. The whole scope of the will in the case of Teal v. Richardson,
The language here is plain that the devisor intended, in the event that John Horsely Hayes had children at the time of his death, that the estate should, go to them, and the case does not fall within the rule in Shelley’s Case, supra, for it is clear, from the instrument and the facts found, that there
The words of the will, “descend to them” (his children), clearly should be construed to “go” to them. Borgner v. Brown (1893), 133 Ind. 391; Dennett v. Dennett (1860), 40 N. H. 498; Ballentine v. Wood (1887), 42 N. J. Eq. 552, 9 Atl. 582; Halstead v. Hall (1883), 60 Md. 209. It could not be construed, in the sense insisted upon by appellees, as being an intention that upon John Horsely Hayes’s death the estate should vest in them, or descend to them by operation of law; because (1) it was unnecessary to use the language if it was intended that the land should descend by operation of law; (2) to have had children John Horsely Hayes must have had a wife, and dower, or one-third would descend to her depending on the date of his death. So that to give any import to the language, compels the conclusion that an estate was created contingent upon his having children at his death, and that the land should go to them to the exclusion of his wife, if he should leave a wife.
The judgment is reversed, with instructions to the court below to restate its conclusions of law and enter a decree in accordance with this opinion.
Rehearing
On Petition for Rehearing.
The rule 'declared in the ease of Boling v. Miller (1893), 133 Ind. 602, cited by counsel upon petition for rehearing, arose under the statute as it existed in 1883, and is in strict accordance with the opinion in this case
The rule in the case of Teal v. Richardson (1903), 160 Ind. 119, has no application here, for two reasons: (1) because the rule in Shelley’s Case (1581), 1 Coke *94, does not apply; (2) the rule where there is a devise over, conditioned upon the first devisee’s dying without issue, without other indication as to the time of the vesting of the estate, refers to a death in the lifetime of the testator, which cannot apply here, because the will indicates the contingency of an estate’s vesting, as one arising after the death of the testator.
The doctrine of Mulvane v. Rude (1896), 146 Ind. 476, cannot apply, because there the bequest of the personal property is so connected with the devise of the real estate as to invoke the rule in construction, that when a will purports to dispose of real estate and personal property in the same words and in the same connection, and when it is manifest that the testator intended both to go together, it will be so construed, for while we here have both kinds of property mentioned in the same clause, we find in the fifth clause a limitation upon the control of the bequest, and the rents and profits, leaving the principal of the bequest, and the rents and profits of the real estate payable to John Horsely Hayes upon the contingency of his arriving at the age of twenty-one years; failing so to do, both the personalty and the realty are to go to others, so that even the personalty is not bequeathed to him absolutely, which is a declaration the reverse of the rule in Mulvane v. Rude, supra. True, the court must construe the will under the law in force when the testator died, and under that law the widow of John Horsely Hayes, surviving him, would have taken dower only. But he was bound to know when the will was executed that the rule might be changed, and it was changed before John Horsely Hayes died, and unless the will devised the land to
We recognize to the fullest the apparent hardship in this case, and the fact that appellants may have been benefited by the father’s receipt of the value of the real estate, but we cannot make a rule to fit a hard case in violation of the plain intent of the testator. Besides, it seems to us that a flaming signal was set up in the face of every purchaser, by the language that the farm “is not to be sold, or disposed of by the said John Horsely Hayes.”
The petition for a rehearing is overruled.