*1 adopt theory Supreme Court, appellee’s we cannot continuing applica- disease an silicosis is impairment applied permanent partial would be tion for supra, §40-2220, in the absence (i), for under Section finding that effect the Full Board which of a case, finding, made. Board with instruc- the Industrial
Cause remanded upon facts each element specifically find tions support award. essential 2d 905. Reported 119 N. E. Note. — Juday, of Last Testament Executor Will Myers. Lantz, Deceased, Pence, al. v. Rehearing February 18, 18,490. 1954. denied March Filed [No. dismissed June 1954.] Transfer 1954. *2 Goshen, Chattin, appellants. Carl L. for Simpson, Goshen, appellees. A. James Pence, late of Elkhart J. John A. C. Crumpacker, Indiana, County, April On seized died together proceeding with real estate involved disposing a last and testament other lands. He left will as fol- reads 2 thereof which under Item said lands lows: “ my estate, ‘All оf the residue of be the same mixed, will, personal property, devise and real estate or I bequeath as : follows ‘“ (a) my daughter, Unto beloved Pearl L. Darr, the C%) undivided one-half said residue daughter If, my my simple. death in fee should me, then I will be- survive devise and queath my the said one half of said residue of еstate children, child or share and share alike.
to her “‘(b) (%) The one-half other residue estate, will, bequeath devise and *3 son, Pence, rents, my to have O. Samuel —he during time that he thereof profits and income wife, to Fern Pence shall sustain his and wife, relationship and of husband other the each thеreafter, my shall said son survive such and If, in relationship, however, then to him fee absolute. over wife, him Pence should survive his wife, relationship of then on sustaining to him bequeath remain- will, and said devise his death my estate over ing the said residue half of one Darr, daughter, and in in fee to L. Pearl said fee time, at said death of her the event children, share alike.” and share her child duly probate in the Elk- admitted will was Said 1919, Darr, 9, Pearl L. and on June hart Circuit Court inter- partition a of their common in consideration conveying her Pence ests, a to Samuel O. executed deed subject controversy himto in the land interest to his provisions as attached and the same conditions Pence O. father’s will. Samuel under his inheritance on November were divorced wife Fern and his January 19, and brought on he an action in the Elkhart quiet Circuit Court his title to the lands partition described in said deed which are iden- litigation. tical lands involved in this He made his sister, Darr, Omer, Pearl L. her husband and their two children, Darr, Velma and Vera defendants thereto. The said Velma and Vera were then unmarried but subsequently Myers, became Velma Lantz and Vera who are the herein. The records the Elkhart Circuit Court disclose that service was on all had Pearl, and defendants Omer and Vera appeared Darr generally and for answer any right, disclaimed title or interest in the real estate involved. Velma, being a minor, guardian appeared ad litem who filed demanding proof answer strict of each every mate- allegation cоmplaint. rial complaint Said was in general alleged merely plaintiff, terms Pence, simple Samuel fee O. owner of the lands described; claim the defendants title to and an plaintiff’s rights, lands adverse to the interest right Upon are without unfounded. which claims court, January 31, 1922, on entered these issues dеclaring Pence to the fee Samuel be a decree O. quieting his title said lands owner were against defendants which all claims of the thereto right March adjudged and unfounded. On to without wife his former O. Pence remarried Samuel continuously death with her until his Fern and lived leaving Fern, widow, August 28, 1952, as his his preceded L. hеr at law. Pearl Darr heir sole 6, 1944. in death on brother June Samuel *4 brought pres- the appellees the On October alleging that, the under against Pence ent Fern suit will, could grandfather’s the said Fern of their terms the lands involved in whatever acquire no interest through her death husband’s and under circum- such passed them, the fee to stances title said lands to being their mother Pearl Darr then dead. Wherefore quieted titles be and at rest as ask their set against any and of the defendant Pence. all claims Fern put case died and Before this issue Pence duly parties appellants defend- were substituted They paragraphs ant. answered in four the third and although fourth of out on which went demurrer and ruling assigned point such is as error no of it is made appellants’ brief we therefore treat paragraph matter as waived. The first of answer is in conformity pleads judg- to Rule 1-3 the second January 31, 1922, reply ment bar of this suit. No paragraph Upon to was addressed answer. trial appellees for the these issues the court found appropriate appeal decree from which this entered stems. asserting
Although
pleading
no
filed
judgment
January
procurement of the
fraud in the
permittеd them introduce
to
the court
having
evidence,
objections,
no
pertinent
impeach
other
than
probative value
procurement
for which
judgment
in its
for fraud
obviously
This was error
offered.
purpose it was
First,
where fraud furnishes
particulars.
two
up by
ground
any
must
type of relief it
be set
constituting
alleging
fraud before
plea
facts
special
tending
fact will be
prove the ultimate
evidence
App.
Bending (1905), admitted. MacAfee
Second,
collateral
constituted
E. 412.
76 N.
January
judgment
1922. Where
attack on
sought
judgment
invalidity
prior
of a
extraneous
matter
subsequent suit
in a
shown
made
cannоt be
collateral
record,
attack
*5
557
v.
by
party
a
City
to the
Greensburg
former record.
of
(1901),
126,
Zoller
28
App.
Ind.
1007,
60 N. E.
3 Ind.
Law Journal 566. There
exception
seems to be an
this rule where
express pur-
the second suit
for
is
pose
vacating
voiding
of
prior
judgment
procurement.
regarded
fraud
its
a suit is
Such
аs a
though prosecuted by
direct attack
party
even
to the
former record and' such record shows no infirmities on
v.
Cotterell,
(1898),
its face.
Administrator
Koon
151
182,
Ind.
affirmatively jurisdiction it shows had parties. judgment, Under such circumstances its fraud, merely even tainted with is voidable and re binding parties by mains on all until set aside a direct Council v. proceeding purpose. County for that Owen State, (1911), 610, 253; ex rel. 175 Ind. 95 N. E. Welch Capital 416, Papеr (1921), App. v. 76 Co. Ind. 132 N. E. judgment infirmity Its not 313. void unless the that v. appears it face of the record. makes so Clark 13; E. Larimer (1893), 134 34 N. Hillis Ind. App. (1914), E. 105 N. E. Krau 103 N. 936; App. White v. Bradfute find no infirmities on N. E. 123. N. E. We necessarily judgment and it said face of record subject attack as to collateral follows was judgment. a void against appellеes made two defenses below
The judgment January as a bar to this action. say First, that, as the beneficiaries of an executory devise, they acquired absolutely no the land in said interest involved assertable until O. Pence died and Samuel quiet title suit him the event Fern Pence survived as his then Pearl in the further event their mother widow contingencies occurred That these was then dead. Darr appellants rely long judgment upon which after the judgment necessarily no bar to assertion Second, they say rights subsequently acquired. void procured and therefore judgment fraud *6 binding of anyone. the absencе In of effect and no these con- findings, say which of cannot special we as prompted decision and evidence tentions court’s wholly support improper of fraud issue was in must its erroneous assume that and admission we harmful. error was
Judgment and with in- reversed cause remanded appellants’ to sustain the motion a new structions trial.
Royse, J., opinion. dissents with
Dissenting Opinion agree majority opinion with cannot J. I Royse, I believe contravenes well-established in this case. prior decisions of this court enunciated principles Supreme Court. of John A. (b) Item 2 of will Subdivision litigation, provides Pence, this which is the sоurce of follows: as “‘(b) (%) The other one-half of the residue estate, will, my bequeath devise over to Pence, rents, my son, Samuel O. —he during thereof the time that profits and income wife, Pence, Fern shall he and his sustain wife, relationship of husband to each other thereafter, my such re- said son shall survive If, absolute. lationship, then to him fee over Pence, wife, survive him however, should his sustaining wife, relationship to him the then will, bequeath on his death I devise and re- said maining my one-half said residue estate daughter, my Darr, in fee to said Pearl L. time, in the at event of her death over in fee ” children, child her sharе and share alike.’
It is a fundamental rule in the construction of wills duty it is the of courts to effectuate the intent of gathered the testator as such intention is from the four corners will.
It opinion quoted provision above clear, unambiguous positive, language expresses the intent of the testator that if Fern Pence survived Sam while wife, property go she was his this was to first to Sam’s died, and if sister she had then to the herein. executory In other words was an devise. Gavit,
In Blackstone’s Commentaries on the Law (1941 Ed.) pp. such a devise defined follows: executory “An devise lands is such disposi- by will,
tion of them thereby no estate vests devisor, the death of the but on some future *7 contingency. devise, being “Such interest, a can- by recovery, not be barred a it suffered before (My commences.” emphasis.) 4, Thompson In Property, p. 813, on Real Sec.
it is stated:
“Indestructibility is an essential element of an executory limitation, upon happening the specified the ing springs event it being, into terminat- preceding determinable fee. The first taker power by any has no a first taker has to it defeat act of his. When executory valid limitation has been created power destroy by it common no recovery, an unlеss the limitation over is after executory tail. An estate limitation from differs contingent may remainder in that latter be by means, destroyed barred or an several whereas executory to take when limitation is bound effect fine, recovery, contingency no happens, and estate after it or which alteration sale or taking prevent its the effect limited will is effect. destroyed executory only can be devise £An contingency upon which is by a failure of not, law, at the common effect; and it could to take taking the con effect when prevented from be recovery by fine and
tingency happened, either contingent by remain which any modes being executory destroyed. devise The could be ders the fee quality of indestructible, the determinable ” by him.’ any transfer follows taker of the first Abernathy McCoy al., etc. In the case 1930), (transfer denied App. destroy person that no can court held E. N. merely such, per in another executory interest also, merger alienation, or surrender. See either son (1859), 13 and Another Another v. Miller Jones Ind. 337. Replacement, provides 56-138, Burns’
Section as follows: any abolished; estate tail are “Estates law, according would be common
which adjudged be tail, adjudged hereafter a fee shall be shall remainder simple; and if no valid fee a limited simple absolute.” thereon, a fee shall distinguished noticed; is to be statute “But this simple, a fee The a fee absolute. between latter is that the possible distinction between two subsequent, the former subject while no conditions again subject. say here fair to may It seems be so ‘executory the sense of used in the word 'remainder’ is ambiguity made that substitute devise’ fee tails into fee turns all The statute is removed. *8 561 formerly would have simple estates but saves what interest, exeсutory good a remainder as an been Gavit, Future interest.” that it is valid the extent 58, Edition), Interests, Descent, (1934 Sec. Wills p. 122.
Conceding deciding may appellees without that proper parties been they in the action of cer- tainly necessary parties. were not that action When was commenced and determined herein had no interest in this land which could then have At that time asserted. Sam Pence and Fern were not married. The record of that case introduced in evi- dence herein asked for and shows Sam received by a fee title. But the title he received judgment was defеasible in the he event remarried him Fern and she survived while she was his wife. Sam, happened. That Darr died Pearl before leaving opinion, when died Fern as his widow Sam property under the will of John A. Pence became property appellees. S., p. In 5 J. is stated: C. Sec. appellate “The court will affirm judgment, appealed order or decree on ord, from if it is sustainable any legal ground theory apparent or on the rec- though ground even theory differs
from that stated the trial court to be the basis ruling (See of its or action. authorities cited under 63.) *9 me it herein seems Therefоre, on the record ap- find for probably did have and could court intent the testator it the clear was pellees because property in this the event they have that should died, that died Pearl Darr when he wife was Sam’s judgment was de’ath. prior to When Sam’s contingencies that would the likelihоod rendered prop- acquire title this they could happen which the sword erty that held thinner than hair indicated, Fern was not Damocles. heretofore As Hence, and Pearl Darr was alive. then the wife Sam that had no title this time ascertainable judg- herein that property. the authorities сited Under title subse- not them of the ment could divest through con- happenings quently acquired tingencies imposed. For had this the testator which were not harmed appellants could not be and reason erroneously case in admitted by any evidence proceedings. to the 1922 reference Finally, appellants their brief assert record in the' 1922 herein does show action Sam provision Pence on the of his based his title father’s may prop acquired it he title will and to this erty in some It other manner. an elemental rule that adjudication in an action ais determination not actually therein, toas what was decided but also every parties as to other might matter which the litigated. (1888), 315, 317, v. Wilson Buell 117 Ind. v. 231; Company E.N. Mutual Insurance Benefit Life Bachtenkircher, (1935), Receiver 81; County 198 N. E. Board Commissioners Adams v. State et al. ex et rel. Gibson al. pleadings case, E. 2d 891. Under the in this N. acquired by
if the in that case was based on Sam title any acquisition, other mode of was incumbent appellants They to show that in this did not case. do so. judgment should be affirmed. believe Reported in E. 2d 382. 117 N.
Note. — al., Discher, Klapp, etc. et al. Rehearing April 18,461. 1954. Filed March denied
[No. denied June 1954. Transfer 1954.] notes To the same effect see: State ex rel. Garn v. Board of County Commissioners (1906), Election Marshall 276, 288-289, 1016; E.N. Central Indiana Railway Company v. Wishard 970; Abernathy McCoy al., supra, E.N. p. 582.