95 Ind. 167 | Ind. | 1884
Action by the appellees against the appellants for the partition of real estate1. The controversy in the ease grows out of the construction of the fifth clause of the will of Peter Lennen, who died in 1862, seized* in fee simple •of the real estate which is the subject of the present litigation.
“ Fifthly. I give' and bequeath all the rest, residue and remainder of my estate, real and personal, to Ann Bratton, Thomas Lennen, Peter B. Lennen, Barbara Ann Keffer, Louisa Ellis and William ,C. Lennen, as tenants in common, to share alike, except that the share or portion belonging to-my daughter Louisa Ellis, wife of James Ellis, be $150 less than the others, she having been paid and advanced that amount already; and it is further provided and excepted that the share or portion of said Louisa Ellis shall descend to her and her children after her free from and beyond any control of her husband, the said James Ellis, and unincumbered from any of the debts and liabilities of his forever. I also direct that at the death or marriage of my wife, Amelia, the real estate set apart for her support, in item No. 2, shall immediately descend and belong in fee simple, as tenants in common, to all my children as in this item No. 5 provided.”
The devisees named in the fifth clause of the will were the testator’s children. The appellees claim to own the undivided one-sixth of the land in controversy. Their claim is well founded, provided said Louisa Ellis took a life-estate only under the will and the remainder went to her children. Said Louisa Ellis and her husband, before her death, which occurred in 1876, made a conveyance of her interest in the real estate, and through that conveyance the appellants claim to own the interest contended for by the appellees. The question presented is whether the will gave Louisa a fee simple or a life-estate. The court below found the facts specially, and, on the theory that she took only a life-estate, gave its conclusions of law and rendered judgment in favor of the appellees.
If there were words in the will expressly giving the es
We think that the court below erred in its construction of the will.
Judgment reversed, at appellee’s costs, with instructions to the court below to restate its conclusions of law upon the theory that Louisa Ellis took a fee simple interest under the will, and to determine the rights of the parties accordingly.