185 Ind. 81 | Ind. | 1916
— Action by appellant, for partition of real estate, against appellees, devisees, legatees and executors under the will of Daniel B. Keplinger, deceased. Appellees John A. Keplinger and Lizzie Middaugh filed separate answers setting out said will and pleading the existence of certain facts when the will was executed. Tobin v. Tobin (1904),
The special findings show that, in 1908, Daniel 8. Keplinger owned the land in dispute. He had a wife, Mary A.; a son, John A., appellee; and a grandson, Glen, appellant, who was the only descendant of Frank Keplinger, deceased, a son of testator. Mary A., died in 1910, and Daniel died in 1913, leaving appellant and appellee John A. Keplinger as his only heirs, and leaving a personal estate worth more than $7,000 and more than sufficient to pay all debts and legacies mentioned in the will. The will was probated, and appellees John A. Keplinger and Lizzie Middaugh qualified as executors. So much of the will as purports to dispose of testator’s property and to name executors is as follows:
“First. It is my desire that after all my just debts including funeral expenses and doctor’s bills is paid, that the rest and residue of said estate both real and personal I hereby give and bequeath unto my wife, Mary A. Keplinger, she to have the full control for and during her natural life.
Second. At the date of the death of my wife, it is my desire that after a suitable monument is erected at my grave the same to cost not less than Five Hundred Dollars, the rest and residue of what is left shall be divided as follows, to-wit: To Glen Keplinger the sum of Five Hundred Dollars. To the endowment fund of Findlay College of Findlay, Ohio, Five Hundred Dollars. To the Mission fund of the General Eldership of the Church of God in the United States of America the sum of Five Hundred Dollars, with the understanding*84 that the same shall be kept loaned and the interest used only. To May Bickle, the sum of One Hundred Dollars. And after the above distributions are distributed it is my desire that the rest and residue of said estate foe divided equally between John A. Keplinger and Lizzie Middaugh.
Third. I hereby appoint my wife, Mary A. Keplinger executrix of this will during her life and at her death, I hereby appoint said John A. • Keplinger and Lizzie Middaugh to execute it according to the above bequests.”
.Appellant contends: (1) That the first item of the will devises to testator’s wife the absolute fee-simple title, and that such' title is not cut down by subsequent clauses; Mulvane v. Rude (1896), 146 Ind. 476, 45 N. E. 659; Langman v. Marbe (1900), 156 Ind. 330, 58 N. E. 191; (2) that the word “desire,” appearing in the second item of the will in the clause, “and after the above distributions are distributed it is my desire that the rest and residue of said estate be divided equally between John A Keplinger and Lizzie Middaugh,” must be given its ordinary meaning as expressing a mere precatory or advisory wish addressed to testator’s wife, and not an imperative one, which would impress a precatory trust on the land devised to the wife by the first item; (3) that, no trust being impressed on the fee-simple estate devised to the wife, •and the devise to her having lapsed (West v. West [1883], 89 Ind. 529), the title to the land passed by the statute of descents.
Appellees contend that no question of the creation of a precatory or other trust is involved; that the first item devises to the wife a life estate only, while the second devises the remainder, after payment of debts and legacies, to appellees John A. Keplinger and Lizzie Middaugh.
not material in considering a primary gift. A devise of a simple remainder by the use of the word “desire” is as effective as one by the use- of the technical word “devise”. See Taylor v. Stephens (1905), 165 Ind. 200, 202, 74 N. E. 980. It is only where there is a primary gift to one, followed by an apparent attempt to impress, on the estate given, a use for the benefit of another that the character of the words used in such attempt, whether mandatory or advisory, becomes important. Consequently, if the first item, as appellees contend, devised a life estate only, leaving the remainder in fee for further disposition, it is unnecessary to consider the proper definition of “desire” as found in the second item, whether as signifying command or entreaty.
Note. — Reported in 113 N. E. 292. Precatory words in wills, construction, 106 Am. St. 507; 2 Ann. Cas. 593, 21 Ann. Cas. 321; Ann. Cas. 1915D 418; 40 Cyc 1734.