*1 620 1103; Michigan

well (1894), 336, 36 N. E. etc., Hammond, R. Cent. Co. Elec. R. Co. (1908), 42 v. Erie, Lake etc. R. App. 66, 650; v. Co. Ind. 83 N. E. Essington App. E. Ind. N. 457.

We find error no herein is there- fore affirmed.

Bowen, «L, Kelley, J., Cooper, Crumpacker, C. P. Royse, JJ., concur. Reported in 142 E.N. 2d 437.

Note. — Pence; Juday, et al. Lantz Executor of Last Will Pence, and Testament Deceased. 18,879. May Rehearing Filed 1957. denied

[No. September 26, June Transfer 1957. denied 1957.] *2 Simpson, Goshen, appellants. James A. for Chattin, Goshen, appellees. L. Carl plaintiffs J. The were the Crumpacker, below. Their suit is to certain lands *3 County, Indiana, against Elkhart the adverse claim litiga- pending the thereto of Fern J. Pence who died tion, whereupon Juday, L. both G. as executor of her beneficiary thereof, will and as the sole was substituted party defendant. The court decision of the against and the is nothing by complaint. take their The case was tried following agreed upon the statement of facts: “During lifetime, his one John A. Pence became the owner of certain real estate involved in this together proceeding, lands, with other in Elkhart County, Indiana. John A. Pence died testate April 13, 1918, seized of same this real estate. He disposing a last will and testament left of said lands under Item 2 thereof which reads as follows: “ my estate, ‘Item 2. All of the of residue be the personal property, mixed, real estate or I same will, bequeath devise and as follows: “ ‘ my daughter, (a) Darr, beloved Pearl L. Unto (Y2) half of said in undivided one residue fee daughter simple. If, my my at said should death me, bequeath will, not survive I devise then and my said to Half of said of estate (%) One residue children, her and share alike. child share “ ‘(b) (%) the residue of other one half of son, my estate, will, bequeath my I to devise and rents, Pence, profits and he to Samuel O. have during period time he income thereof of Pence, present wife, to sustain and his Fern shall wife, relationship each and relationship, and other husband thereafter, my if such said son shall survive absolute; If, in then over wife, him fee to however, Pence, him Fern should survive his wife, sustaining relationship then on to him the bequeath I said remain- his death devise and my ing in fee to over half estate one of the said residue Darr, my daughter, in to Pearl L. and time, in fee over of her at said event death children, alike.’ her and share child or share duly probate in the “Said will was admitted 9, 1919, on June Pearl Elkhart L. Circuit Court Darr, partition their of a in consideration interests, a deed to Samuel O. executed common in conveying land contro- her interest Pence versy subject conditions to him same his under inheritance provisions as attached to his will. father’s his wife Fern were di- “Samuel O. Pence and 5, 1921, January and on vorced on November brought 1922, he an action in the Elkhart Circuit to the lands in said described Court his in- partition volved in are the identical lands deed which litigation, excepting a one and one- this northeast out of the acre tract land (1%) half action, described this corner of lands conveyed father had been prior to Samuel O. Pence his death, liti- to his involved

gation. Darr, L. her husband made sister Pearl “He children, Omer, two and Vera and their Velma *4 Darr, The said and Vera thereto. Velma defendants subsequently became then unmarried but were Velma appel- Myers, are who Lantz and Vera lants herein. dis- records of Elkhart Circuit Court “The on and

close that service was had all defendants generally Omer, appeared Pearl, Darr and Vera any right, inter- title or and disclaimed for answer being Velma, a involved. in the real estate est guardian filed litem who minor, appeared ad a every demanding proof and of each strict answer allegation complaint. material general terms and complaint in was “Said Pence, merely alleged is plaintiff, O. that the Samuel described; simple the lands in fee owner and an claim title to that the defendants rights, which plaintiff’s said lands adverse claims right unfounded. and are without 31, January court, “Upon these issues declaring Pence O. a Samuel entered decree quiet- lands of said to ing fendants and unfounded. the fee owner against de- all claims title thereto his right adjudged to be without which were 6, 1922, Pence remarried March Samuel O. “On and lived with her contin- wife Fern his former uously Fern, 1952, leaving August 28, death on until his only widow, heir at law. his as sole his preceded her Samuel brother “Pearl L. Darr death on 1944. June Pence, lifetime, his “During with O. his conveyance joining, a executed Fern Pence wife J. conveying Bothwell, the lands con- to one Frank P. Bothwell, imme- he, P. Frank cerned and O. diately reconveyed lands to Samuel the same Pence, and wife. husband Pence Fern J. brought 29, 1952, the “On October Pence, before against present Fern but the the suit could be suit died, leav- brought Fern to issue duly ad- ing mitted to was a testament last will and By probate in the Elkhart Circuit Court. nephew a L. G. all of her estate said will she left Juday, February 24, named executor thereof. On who was also Juday nephew L. G. representa- party defendant in his as a substituted capacity individual as Executor and tive capacity.” facts, appellants contend that these as matter quited prayed law, their title entitle them to have

625 them and therefore for. That relief denied such was theory contrary Their the court is to law. decision of (b) 2 A. Pence consti- that Item of the will of John is executory simple title to the of the fee tuted an devise controversy them in the event real estate in Samuel leaving and Fern Pence his widow O. Pence died J. providing L. Darr was further that their mother Pearl executory operative then That said devise became dead. August 28, 1952, then died when O. Pence sustaining relationship to Fern J. husband Pence who him survived as his widow and Pearl L. having preceded say They Darr him in death. that the 31, January Samuel O. Pence obtained on 1922, against quieting his title to the land here involved adjudging appellants all claims of these and claims said right unfounded, to be without of no force and is of res theory effect as a defense to this on the suit adjudieata (1) a future because interest in real estate by executory except created an devise is indestructible contingency failure of which the estate limited; (2) rights of the first taker is that their interest in the real estate involved did come into August 1952, until when existence Samuel O. Pence leaving Fern A. Pence as That 30 died his widow. years quieted after Pence his title Samuel O. to said real estate at which time had no interest in or against property. claim assertible appel think without doubt the law We is with the 2 (b) in their assertion Item lants of the will of executory A. Pence constituted an John devise question. Tiffany of the real estate in 2 them Ed., §360, pp. 110, Property, 111. on Real 3rd that a fee law or lesser estate also is settled subject so as to defeasible and be created Corey, Executor, Springer executory v. limitation. 322; Watson v. 506, 37 E. et al. (1894), 138 Ind. N. 626 411;

Tracy (1921), App. 133 N. E. Ind. Estates, §14, p. Jur., Am. 472. agree the law with it

We further elsewhere, person Indiana, generally that no can executory person, either destroy in another an Abernathy alienation, merger v. Mc or surrender. 682; App. 154 N. E. Jones Coy (1930), late Professor Gavit Ind. 337. The Miller *6 Ed., §90, p. Interests, 1934 Future in his text on the rule thus: states than interest other that future “It seems clear destroyed contingent be in no event remainders can At prior interests. pleasure of the owners

at might following be tail law, a fee interest common recovery. common of fine or the actions barred tail, certainly so the fee abolish statutes Our any as valid, effect, if upon it takes limited interests They are thus indestruct- executory interests. ible.” lim- of the however, the terms conceivable,

It is estate, taker’s the first itation, imposed the will on respect intention ambiguous the testator’s are corn- the four within to determine thereto is difficult may arise con- instrument; question or a ers of contingency upon cerning the failure circum- depends fruition. Under such future estate any person interested be conceded it must stances rights de- proper to have his court to the resort termined. Pence was us that when Samuel O. to clear seems he Fern on his wife from November

divorced that, the terms of his father’s under concluded property in contro in the real his estate simple This versy in fee absolute. one became justified if said will is construed position be can long the rela he Fern sustained that as as mean only and wife he was to have tionship of husband profits rents and of said real estate in the but event through relationship, he either survived such divorce death, simple property became his in fee or Fern’s subject vesting thus in him an estate not absolute by executory limitation devise. Pence faced with

On other hand Samuel O. might construed, possibilty that will his father’s urge, evidencing appellants an intention as the now part possibilty on the of the testator to bar forever acquiring in his son an interest Samuel ever along property pass to Fern and if that he could mar- while and remarried Fern and died so divorced imposed executory limitation time the ried the second operative by the estate would become will Samuel’s vesting fee a title to thus any Fern exclusion of estate to the the real as, might have therein Samuel’s widow. otherwise sought relief with dilemma Samuel Faced through Elkhart Court suit Circuit daughters against Pearl Darr and her Velma his sister against possibility of either of them and Vera *7 asserting executory a claim in the future based on the his father’s will. It is true that contained in devise alleged merely he in complaint that is the owner his described; that simple the defendants of the lands fee to in lands adverse an interest said title to or claim claims are without rights; that the defendants’ said his right of the The answer minor defend- and unfounded. through guardian litem, ad her demanded ant Velma allegations complaint all the proof of strict proof in- was made. That that such must assume we the owner in fee proof that Samuel cluded any de- claims the estate involved the real in might are unfounded law. thereto assert fendants future, present or parties, either rights the of all theAs apparent it A. Pence of John the will from derive 628 proof required

that the could not have been putting made the in without construction of said will issue and from its decision we are bound to assume the court concluded that divorce from Samuel’s Fern fore- possibilty executory closed the devise contained in becoming Right wrong will ever effective. such appealed not from decision was and still stands un- impeached. question

This consideration leaves for our as not, appellants any in had whether or assert property ible claim in and to involved quieting title thereto a decree Samuel’s say- say They operate. not. The could 1952, leaving up to time death in Fern of Samuel’s nothing possibility widow, but a had bare gossamer in substance to constitute an inheritance too no Indiana or interest. We have found claim assertible point neighboring directly of this but our case decisive Kentucky executory has said are devises state Graves possibilities but substantial interests. mere Ky. Spurr, (1895), Trustee 31 483. S. W. neighbor north, Michigan, takes the view our being possibility executory devise, coupled a that an interest, has same of descendi an incidents with contingent assignability devisability re bility, as re: Estate Coots’ 253 Mich. mainder. we are constrained hold 141. Thus 234 N. W. sought quiet appel his title in when Samuel probate Elkhart had, records of lants as disclosed prop future County, apparently valid an if, erty a cloud on which was Samuel’s involved fact, contingency upon dependent it which was a suit to Under such circumstances had failed. recognized proper remedy. title has been Quieting Title, appellants knew, S., §39. C. J. rights *8 as well as their own were that Samuel’s

629 grandfather’s predicated will their the terms of they they position take then could have taken estate, executory now that limitation Samuel’s will, prescribed by had failed be the terms of said possi there was from Fern as cause of his divorce bility remarriage while so to her his death of his duty, appellant’s when married. We think it was court, urge upon a construc the court summoned into grandfather’s pro have their will that would tion of they they then had and which tected the future interest they failed to do claim come to fruition. now has This adjudge contrary they permitted the court to but on the executory through possible title their claims to a will, with to be unfounded and contained in devise said right. out agreed complaint in which Samuel that the alleged the owner of he was suit in

stituted appel involved in fee real estate claiming therein title or interest some lants were un rights, were which claims adverse to his right. complaint was suffi Such and without founded §3-1401, Burns’ 1946 requirements cient to meet upon the encumbent then Replacement, and it was future a valid claim to their appellants to forth set they which, con what under real estate grandfather’s their proper construction sider a from divorce determined Samuel’s been had not forever barred. Having are so do failed Fern. App. 465, 135 al. Ind. et v. Scharman

Green E. 3. N.

Judgment affirmed. opinion. J.,

Royse, with dissents Opinion

Concurring holding majority concurring in the P. J. Kelley, fitting my reasons therefor case, it seems in this *9 emphasized. opinion be The main should sets forth the agreed upon parties facts which the tried the cause and unnecessary it to re-state them here. is Although action, appeal this is the second to us of this decision, prior Juday, Executor Last found of Pence, et Will and Testament Deceased al. v. Lantz of 552, 382, (1954), App. et al. 124 117 E. 2d Ind. N. did not establish the law the since it went off on a of case ground opinion not now before no was therein us and by expressed upon precise question here involved. us “ precedent ... a for the doctrine neces a decision is sarily necessarily precedent a involved in it and not judges pronouncements judge for the or who of the point proper the exact it. . . . it is to ascertain wrote points adjudication seek, or before the court for and opinion, by in the the doctrine announced or followed opinion merely . . . All court else in the is reasoning explanation or of the court and attains Hahn, dignity precedent.” of neither nor doctrine Traeger App. 149, v. Moore 134 E. N. 705, (Transfer denied). 2d doctrine adhered Juday, al., supra, to in Lantz et and the aforesaid etc. v. grounds predi upon one of the which a reversal was cated, simply tending was that evidence to show fraud procurement judgment in the the Elkhart Cir erroneously January cuit on ad Court by special plea mitted the court there was no because of fraud and such evidence constituted a collateral January 31, on the opin attack 1922. No directly expresed, by implica ion was there either tion, upon the contentions now advanced pending appeal. It follows that consideration of in the pursued freely present matter unharried ghost prior announcements. begin things, beginning. all well in is agreed facts, Doing find, by A. so, we John here involved. the real estate Pence was the owner of devising He effective at his death made Pearl, daughter, the other the land one-half of to his provisions Samuel, son, the stated half to his with controversy result- which have been the source it, ing litigation. mention exposed than to Other consequence partition without Pearl’s deed here. attention point appropriate to call

At this it seems us, that, whatever th the fact the record before which he acquired to the real estate title Samuel acquired by of and January 19, virtue he held through other source father. No the said will of his *10 his sis- be said of in The same title him is shown. wife, Fern, ter, were divorced Pearl. and his Samuel brought January 19, 1922 Samuel and thereafter on estate, joining, as quiet the real his action to title to his defendants, her and their two his sister and husband children, appeal. being the the in this latter of the owner complaint was The asserted that Samuel the in and that said defend- the real estate fee land, which in the title and “an interest” ants claim right and “unfounded.” claims were without quiet brought his action to Now at the time Samuel Judgment Declaratory title, Act had not been a quiet proceeding title was in this and enacted State appropriate method resorted usual and most then the instruments, obtaining judicial construction to for wills, title as a basis for determin- sources of and other legal invalidity title. ing validity anof asserted or the by remedy apparently pursued the was Such validity tenure of his as- the and the determination served, ap- were aforesaid defendants title. The serted Pearl, adults, action, pleaded the peared to the and any daughter, Vera, husband, her disclaimed and her Velma, minor, “right” land. “interest” or litem, guardian appeared by ad filed de- answer manding proof allegations strict of the material of the complaint. assumed, course, It must be properly judicial duty required performed court its proof” allegations. complaint “strict of the In order title, proof to make strict of the basis and source of his required put Samuel was in evidence the will of his father. any showing contra, absence we assume, must also decree, in favor of the that the will put in evidence and to the submitted court for construction thereof. This must so for the in- sofar as is present record, disclosed was the only evidence of the source of Samuel’s asserted title simple. fee assumed, us, cannot upon now be the record before dispute therein, either rendered proceeding defendants to said were not apprised rights of their and interests under will obliged any or that were not to tender and assert present potential rights or in and to they may real estate which have had or was re- certainly provisions vealed And it the will. guardian must be assumed answer of the de- manding rights proof put strict in issue all interests land of the minor child under what- placed ever construction court then the will. *11 apparent Thus it that the is court was not relieved though duty construing said will even disclaim- were the other ers filed three defendants. “A com- challenges plaint present quiet title to to the defendants claims, directly gives opportunity their them and an title, if fail to assert their interest or and do so they are concluded. doctrine is This as old as indeed, (Our emphasis). it much is older. Davis court — 188, v. Lennen 24 N. E. 885. As claiming against fee, one an estate in an assertion of a contingent to constitute or is sufficient future Quieting Title, page S., claim. J. an adverse 74 C.

§39. entered suggested at the time the court

It is now 1922, adjudging all January 31, claims decree, on its right and unfounded to be without defendants of said simple owner of declaring the fee to be and defendants, thereto, quieting the said and land here, children, including and her two Pearl real to the title under the will had no ascertainable posi are in to me that we now But it estate. seems appears logi make such determination. more tion to legal in with the and more accord consistent cal to me safeguarding by our courts principles established recognize stabilizing estate, real titles Court, quiet the said title ac Elkhart Circuit tion, required did construe the will and de to and was the claims of the defendants therefrom termined and that Pence was Samuel O. were unfounded the land. such construc owner of Whether fee wrong thought, right was, now tion jurisdiction parties, of the court had The no moment. jurisdic competent by a court of was construed the will determined, rights parties were a final tion, of the entered, appeal there was no therefrom. decree “It not were concluded: matters parties thereto All the great of the court in the many errors or how how void, suit, the decree is and if not void course Lennen, availing.” Davis can be attack no collateral supra. all under of whom were beneficiaries action, may quiet title not have then parties to the

made certainly but “title” most possessed an ascertainable possibility of an “interest” the will disclosed title action the court it was for land guard by raised answer the issue under *12 litem, possibility ad that was and ian to determine what any of interest the defendants the nature and kind fact, executory interests have had under the will. certain interests possibilities but are are not mere coupled possibilities estates, as referred to- sometimes Estates, S., page a. §122 with an interest. C. J. that necessity, found court, must have coupled in possibility an with possessed no of the defendants that “all” claims it concluded terest for quieted title the in Samuel as “unfounded” and were fact, was, (in he) in simple this case title. “If she fee fee, possibly the could not defendants the sole owner whatever, a fee any for the existence of title have absolutely Davis always exclusive.” simple Lennen, supra. court,

Further, my opinion, the in the title it action of in order to arrive at conclusion interpreted providing expressed, the will must have relationship of husband if survived Samuel existing O. Pence and his between Samuel and wife death, wife, Fern, at the time the testators the fee wording will, simple title, would vest under the event, executory absolutely. In such de- in Samuel be, destroyed; vise, if it was not it never came such contingency being, for the which it was into by predicated impossible of was rendered occurrence existing relationship of the then Samuel’s survival having of Fern. The fee title vested Samuel husband absolutely, terms, provisions under and conditions will, expressed properly by so confirmed employ court. the court While did word “abso- decree, such, nevertheless, lute” in its was the true by Samuel, given tenure title held for he held title by him virtue of will and not virtue of the con- If, by title firmation of his court decree. reason circumstances, took a fee Samuel simple absolute, he a fee then took under the provided the devise and that was is what will re- thereafter The fact made Samuel. *13 my not, opinion, wife could in married his former already con- the foreclosed and re-establish resurrect relation- tingency will, for the husband and wife of the the Fern at between Samuel and ship which existed by and death was survived Samuel time decedent’s which, by the only relationship the terms is acquire the in to will, to survive order was Samuel I think that simple title the land. And to fee absolute by its decree confirmed court construction is holding the defendants’ title and quieting Samuel’s here, also, that noted well claims unfounded. original to or Samuel by first devise the will rents, only or limited estate to a term amounted leaving fee in sus- profits land and income con- alternate of two pension until one and unvested contingency tingencies first alternate should occur. The existing the then relation that if survived was wife, Pern, the then in to fee would vest of husband provided contingency Samuel, absolutely. Said first thereupon pass, and a fee the one first came to my opinion simple in absolute vested Samuel. upon contingency, happening

second of the first contingency, derogation became it in void for was then repugnant of and to the fee absolute title held Estates, page 137, S., §122,b. 31 J. Samuel. See C. (2) (a).

Whether we would now so construe the if we entertaining quiet were title action of Samuel at date, consequence. otherwise, is of no If it were stability there would be no real estate titles and purchase and alienation thereof would be a hazard- venture, nothing say to ous of the effect com- attempting

mereial world in to utilize real estate as se- curity for loans and advancements.

A quiet in an action to title final and con only clusive as to actually all issues involved and determined but also as to such matters should have litigated S., been Judgments, determined. C. J. page 241, providing “The statute §738. an action secure repose was intended to settle comprehensive conflicting one claims; all action quiet title, decree an action to . . . cuts off all party claims of the unsuccessful which are not saved Savings (Our emphasis). the decree.” Central Federal Cummings & Loan Association et al. 639, point persons

Ind. 25 N. E. 2d 638. “All parties privity were to the action are who made persons with such appeal and who failed to or take proper steps judgment, other vacate are bound *14 finding. by finding that No matter how the erroneous judgment may the of the court thereon based have finding been, judgment such can not be attacked in by party proceeding a who collateral one was a to said judgment by privity party.” one in a or with such Corporation Realty Bowers, Jr., v. Trustee Grantham 679, 672, (1939), et 215 Ind. E. 2d 832. N. al. ready abrogate and are now to renounce Unless we extending long cases, very back the to first of the list of holding judicial expressions, in an action to our affecting title, parties the title of the all matters determined, effectually adjudi- decree be land, to an interest all cates claims whatever existing character, at time the decree their form judgment rendered, that the conclusive on the is is Bloomington and (The Indiana Western Rail- parties, Company (1887), Allen way Ind. 15 N. E. me must conclude that 451), that we it seems Court, January Elkhart Circuit rendered of the decree 31, 1922, judg- is decisive of this action and that appealed ment from in this cause must be affirmed.

Dissenting Opinion appeal J. This is second this case. Royse, Juday, the case of Executor Last Will and Testament Pence, Deceased et al v. Lantz et al App. 552, 117 N. E. 2d (appellant’s petition to Supreme transfer to the Court was dismissed because it late). was filed too appellees In that case the here appellants were the and the here were the appellees. majority The author opinion of the there is the author of majority opinion In that case.

case I dissenting wrote opinion a and for the reasons hereinafter again stated feel that I must dissent. In case, pages at 556, 557, majority correctly pointed out that: “Although appellees pleading filed no assert- ing procurement fraud in the judgment January 31, 1922, permitted the court them to in- evidence, pertinent troduce objections, having over probative impeach no value other than to judgment procurement for fraud in and for its purpose obviously it was offered. This was particulars. First, error nishes the set in two where fraud fur- ground any type of relief it must be up alleging constituting special plea facts tending prove fraud before evidence fact will the ultimate Second, a admitted. . . . it constituted January judgment collateral attack on the 1922. invalidity prior a is Where sought subsequent be shown in suit matter record, extraneous to such attack collateral *15 party and cannot be made a to the former exception record. . . . an to this There seems be pur- express rule the second for the where suit is voiding vacating prior judgment

pose fraud or regarded procurement. a its Such suit though prosecuted by a a direct attack even as party record shows to the former record and such no on face. It is obvious that infirmities its ... present exception.” case does not fall within this majority opinion then stated: appellees “The made two below defenses against judgment January 31, as that, First, they say bar to action. as this devise, they acquired executory

beneficiaries of an absolutely land in- no in the assertable volved in title suit of 1922 until said only in O. Pence died and then the event Fern Pence survived him as his widow and in the fur- ther event that their Pearl Darr was then mother contingencies long That these occurred after dead. judgment appellants rely the necessarily which the judgment bar to the asser- such is no rights subsequently acquired. Second, they tion of say judgment procured fraud and binding anyone. therefore In the which of these contentions and of no effect void findings, special say we absence cannot prompted the court’s support and as evidence in decision issue was roneous we must assume fraud improper wholly and its admission er- error that the was harm- (My emphasis.) ful.” my opinion majority opinion there stated and, right wrong, law this case established govern Daugherty rule that et al. v. must case. Daugherty et al. App. 83 N. E. (Transfer denied). interpret opinion 2d 902 I holding if the erroneous evidence had not been ad- objection proper mitted trial over decision Therefore, court would affirmed. in this case the being stipulated, majority opin- facts as stated in the ion, being substantially same as first case, it seems me the of the trial court should be reversed.

However, if rule of the law of the case is not here, applicable I that on the believe record herein the judgment should be reversed.

639 my case, page 559, In dissent in the first at I said: “It is a fundamental rule in the construction of duty wills that intent it is the of courts to effectuate the gath- the testator as such intention is ered from the four corners will. my opinion quoted provision “It is the above b) unambiguous clear, positive, (Item subd. language expresses the intent of the testator if Fern Pence survived while Sam she was

wife, property go first to Sam’s sister died, appellees and if she had In then to the herein. executory this was an other words devise.” support Gavit, I In of this statement cited Blackstone’s 323; 4, (1941 Ed.), pp. 322, on the law Commentaries 2266; Thompson Property, p. Aber- on Real Sec.

nathy McCoy al., (1926), App. 574, et etc. Ind. 682; (transfer 1930), denied 154 N. E. Jones and 337; Another Another v. Miller and §56-138, Gavit, Replacement; Burns’ 1951 Section Descent, (1934) Edition, Interests, Future Wills 58, p. 122. Sec. majority recognizes foregoing opinion now and,

principle my of law set forth dissent be as will noted, cited several of the authorities relied therein. opinion time, by

Their now the first I what deem reasoning, bogey tenuous raises the straw man of “ambiguity” to sustain their conclusion. my opinion

In provision the construction of this meaning controlled of the word In “survive.” Dictionary Webster’s New International (Second Edi- tion) it is defined:

SURVIVE —“To remain existent; alive to live on; exist; to continue to to live be- yond of; the life or existence to live longer than; outlive; outlast of; as, end to survive person, a dis- aster, period or one’s of usefulness.

Syn.—Outlive.” Dictionary (Third “The Oxford Edition — Concise”) “Outlive, still alive or in be existence SURVIVE — away of, passing after the come alive through spite or continue exist in of, (s. &c.; continue to live or or existent. Hence children, contemporaries, one’s ; usefulness; perils) s. all one’s s. exist, alive still SURVIVOR, SUR- *17 (esp. right joint VIVORSHIP of tenant to whole estate on other’s death.)” — Dictionary, (Third Edition) Law In Black’s beyond continue to live or exist SURVIVE —“To life, of; the or existence to continue to beyond (a period specified live or exist ; through of; event) spite to live through; passing re- live after to operation alive; main force or exist beyond any period specified.” construing provisions of rule that in It is elemental an give ordinary to words their kind, courts will this meaning. my opinion recognized generally In usual and testator’s, definitely clearly, provision of will this the ambiguity that in event intention stated his without died, he the wife of Pence when Fern Pence was go to his named therein. real would heirs this estate Therefore, his wife. as stated he died she was When original my page dissent case: at judgment of 1922 rendered the was “When contingencies happen would likelihood which thinner property acquire title to this was could that held the sword over hair than indicated, not Fern was heretofore of Sam As Damocles. alive. and Pearl Darr was the wife then at time no ascertain- had Hence, appellees able title in authorities property. Under the this that them could not divest cited herein through acquired they subsequently contingencies happenings imposed.” had testator I adhere to that statement.

Finally, I wish to call attention to a late case from Supreme our question. Court on et this In Rouse al.

Paidrick et al. (2d) 49 N. E. Dan conveyed Paidrick and his wife to son their Lewis reserving Paidrick certain real estate to themselves life property. estate in provided further that Lewis Paidrick hold would said land after grantor during death his natural life and at his go death the living land would to children his then to descendants of those that died. have surviving event Lewis died and did leave him any child, go child or descendants of a the land would sisters; his brothers and if Lewis died before grantor the land would revert to them. three Some years conveyed later by warranty Lewis this real estate father, back years deed father. The later, several conveyed occupied to Rouse who the land under claim ownership from 1883 subsequently to 1932. Lewis married and had three children. Two them brought descendants of the third action *18 Judgment their title. affirming the children. In judgment, Supreme Court, speaking- through Judge said, Richman, page at 524: “By conveyed his deed to his only father Lewis the life appellants’ estate which he had and by

predecessor purchase acquired from Daniel only the life estate Lewis and that reserved long during Daniel. Lewis lived time thought appellants evidently time owned the enlarge the do not estate fee. These facts held death.” ceased with his them which be reversed with I believe the should quiet appellant’s court title to trial directions to the estate. this real E. 456. Reported in N. 2d

Note. —