45 Ind. App. 645 | Ind. Ct. App. | 1910
This was a suit brought by appellee against appellants to quiet title to certain real estate in Wells county, Indiana. The complaint alleges that plaintiff is the owner in fee simple of the real estate described therein; that each of the defendants claims an interest therein, which .claims are without right and unfounded, and are a cloud upon plaintiff’s title thereto.
Appellants Archie W. Lee and Pearl Thatcher filed answer to the complaint, setting out that they are the children of plaintiff by a former wife; that Wayne Lee and Francis Lee are the children of plaintiff by his second wiffe; that Alexander Lee, father of plaintiff, died testate in Wells county, Indiana, on February 24, 1907; that on May 23, 1904, Alexander Lee made a will, item, seven of which is as follows:
‘ ‘ I give and devise to my son, John W. Lee, the following real estate in Wells county, Indiana, to wit: Being the southeast quarter of the southwest quarter of section five, township twenty-five north, range twelve east, containing forty acres more or less, in fee simple.”
That afterwards, on December 19, 1906, said Alexander Lee made a codicil to said will, the first item of which is as follows:
“I revoke and cancel the gift and devise in item number seven to my son, John W. Lee, and give, devise and bequeath the following real estate as his interest as noted in item seven of my will; said real estate being described as follows: Being the southeast quarter of the southwest quarter of section five, in township twenty-five north, range twelve east, containing forty acres of land more or less, to vest in said John W. Lee at my death for a period of natural life of said John W. Lee, and at the death of said John W. Lee the remainder and the fee simple of said described real estate in this item shall vest in the heirs of said John W. Lee.”
Appellee filed his demurrer to the answer for want of facts, which was sustained by the court, and excepted to by appellants. A decree was entered in favor of appellee, quieting the title to said real estate as against appellants. The only assignment is that the court erred in sustaining the demurrer of appellee to the answer of appellants Archie W. Lee and Pearl Thatcher.
Appellants insist that the rule as laid down in Shelley’s Case (1581), 1 Coke *94, should not apply in this case, for the reason that it is manifest by the terms of the will and codicil that it was the intention of the testator that appellee should, take a life estate only in the real estate devised.
Judge Sharswood, in the case of Doehler’s Appeal (1870), 64 Pa. St. 9, 15, said: “While the intention of the testator, if consistent with law, is undoubtedly to be the polar star, yet we are bound to take as our guides those general rules or canons of interpretation which have been adopted and followed by those who have gone before us. It becomes no man and no court to be wise above that which is written. Security of titles requires that no mere arbitrary discretion should be exercised in conjecturing what words the testator would have used, or what form of disposition he would have adopted had he been truly advised as to the legal effect of
The intention to be carried into effect by a judicial interpretation or construction of a will is not that which existed in the mind of the testator when it was executed, but that which is embodied in the language of the will itself. Pate v. Bushong (1903), 161 Ind. 533, 63 L. R. A. 593; Daugherty v. Rogers (1889), 119 Ind. 254, 3 L. R. A. 847; Engelthaler v. Engelthaler (1902), 196 Ill. 230, 63 N. E. 669.
The rule in Shelley’s Case, supra, is: “When the ancestor, by any gift or conveyance, taketh an estate of freehold, and in the same gift or conveyance an estate is limited, either mediately or immediately, to his heirs in fee or in tail, the heirs are words of limitation of the estate, and not words of purchase, and the ancestor takes the same in fee or in tail, as the case may be.” Allen v. Craft (1887), 109 Ind. 476, 58 Am. Rep. 425; Perkins v. McConnell (1894), 136 Ind. 384; Teal v. Richardson (1903), 160 Ind. 119; Lamb v. Medsker (1905), 35 Ind. App. 662; Burton v. Carnahan (1906), 38 Ind. App. 612.
The trial court did not err in sustaining the demurrer to appellants’ answer.
Judgment affirmed.