154 N.E. 293 | Ind. Ct. App. | 1926
Appellants and appellee George Helser on November 26, 1924, filed their petition for partition of certain real estate in the city of Huntington, Indiana, left by one Mary Helser, deceased. On January 16, 1925, appellee George Helser filed his motion to dismiss the petition as to himself, and also filed his petition to be made a party defendant, which motions were granted. He then filed his answer claiming to be the sole owner of the real estate involved, and also filed his cross-complaint in two paragraphs, the first alleging ownership of the real estate, and asking that his title be quieted, the second alleging that under the will of Mary Helser, deceased, he became the sole owner of said real estate and asking that his title be quieted. Reply to the answer and answer in denial to the cross-complaint.
On June 25, 1925, the case was submitted to the court on an agreed statement of facts, and, at the request of appellee George Helser, the court filed special findings of fact and stated conclusions of law thereon, on which it rendered judgment in favor of appellee George Helser, on his cross-complaint, quieting title to the real estate in question. The errors assigned are the court's action in overruling appellants' motion for a new trial, and the conclusions of law. It appears by the special *396 finding that on November 16, 1924, Mary Helser, a resident of Huntington county, Indiana, died testate, the owner of real estate here involved. By item one of her will, dated November 16, 1911, she directed the payment of her just debts, including those of her last sickness, and funeral expenses.
Item 2, is as follows: "After Item 1, of this my will has been complied with, I give, will, bequeath and devise to my brother, and sister namely, George Helser and Emmaline McClanahan, all of the remainder of my property, both real and personal. My said brother and sister to share and share alike, provided that should my brother, George die, before my death, then and in that event, I give, will, bequeath and devise all of my property, both real and personal to my sister, Emmaline McClanahan, as her absolute property. While I have other relatives, I am making the above disposition and distribution of my property, after due consideration of all matters, and after I have fully concluded to so distribute and devise my property."
Item 3 named appellee George Helser as executor and provided that should he die before her death, or should he choose not to serve as executor, then that her sister Emmaline McClanahan should so serve.
The personal estate of the testatrix is sufficient to pay all debts and charges against her estate.
After the execution of her will and prior to her death, Emmaline McClanahan, mentioned in Item 2 of said will, died.
Mary Helser left surviving her no children, or the descendants of children and no husband, and no father or mother; and the only persons which she left surviving her, and who would inherit from her under the laws of descent, in addition to said George Helser, were Daniel Helser, a brother, George Payne, Amos Payne, Mary Howenstine, Letitia Kistner, Charles Payne, *397 Addie Saal, Bessie Phillips, and Bertha Walter, children of Catherine Payne, a deceased sister, Addie Flora, Della Helser and Fairy Shultz, children of John Helser, a deceased brother, Mable Hoke, only child of Ora Helser, a deceased son of said John Helser, Alice J. Hedges and Eva Badger, children of said Emmaline McClanahan.
There is a finding that the real estate involved cannot be divided without injury to the whole.
On these findings of fact, the court stated conclusions of law that: (1) Upon the death of Mary Helser, the whole of said real estate became the absolute property of George Helser; and that none of the other parties to this action have any interest therein, nor did they acquire any interest therein under the will of Mary Helser; (2) George Helser is entitled to have his title quieted in and to said real estate as against all the parties to this action.
Appellee George Helser contends with much force that it is the law that where property is willed to two or more by virtue of a residuary clause in the will, and one of the residuary 1. legatees or devisees dies before the death of the testator, that portion of the legacy or devise will lapse and go to the survivor under such residuary clause, citing with much confidence West v. West (1883),
Appellants cite Rocker v. Metzger (1908),
If we place a construction upon the will for which appellants contend, there will result a partial intestacy, but it is the policy of the law to avoid, if possible, a construction 2. that will lead to such a result. Myers v. Carney
(1908),
It is true that there is a provision in the will giving the whole estate to Emmaline McClanahan in the event of the death of appellee George Helser before the death of the testatrix, 3. which is the disposition that the law would have made of the estate had there been no such provision in the will, while there is no such provision as to appellee George Helser in the event of Mrs. McClanahan's death before the testatrix's death; but we must determine the testatrix's intention from what she has said in her will, and not from speculating upon what she has omitted to say.
We are constrained to hold, under the law as declared by the Supreme Court in West v. West, supra, and Holbrook *399 v. McCleary, supra, that upon the death of Mrs. McClanahan before the death of the testatrix, the devise to her lapsed, and, upon the death of the testatrix, the lapsed devise vested in appellee George Helser.
Judgment affirmed.