23 Ind. App. 569 | Ind. Ct. App. | 1900
The appellee, as executor of the will of Kasimer Fuchs, deceased, presented to the court below his report in partial settlement' of his trust, which was approved. Some months afterward, he presented his report in final settlement. The appellants, Margaret Meyer, Lizzie Meyer and
The appellants have assigned that the court erred in sustaining the demurrer to their exceptions, and also in rendering judgment that they take nothing on account of their exceptions.
The only question discussed before us.relates to the construction of the will of the appellee’s testator, the court below having adopted the view taken by the executor, to the effect that the appellants were entitled under the will to the testator’s household goods, and nothing more, while the appellants contended, and still insist, that they were also entitled to certain money owned by the testator and to the proceeds of a certain promissory note held by him, said money and note being parts of his personal estate.
The will, as set forth in the exceptions filed, is as follows: “Last will of Kasimer Euchs. I, the undersigned Kasimer Euchs, a resident of the city of Oonnersville, county of Fayette, State of Indiana, do hereby declare that after my death all my real estate and personal property shall be disposed of as follows: (1) I bequeath all my personal property consisting of household goods to my stepdaughter Mrs. Margaret Meyer and her children Lizzie and Josie. (2) All my real estate, consisting of house and lot, with adjoining buildings (including my tools), on Grand avenue, No. 124-127, shall be sold by my executor (appointed below) to the most bidding person, and the money received therefrom shall be disposed of as follows: ■ (a) All funeral expenses shall be paid in full from said money (medical services included), (b) The person attending on my sick bed shall receive from said money the sum of $75, as reward for faith
In their exceptions, the appellants showed, amongst other matters, their connection with the testator, and facts which, at least in the absence of other possible facts not stated, might be regarded as tending to prove that the testator would probably be disposed to favor them in his will in preference to his heirs at law residing in a foreign country.
In seeking for the intention of the testator, which so far as it can be found must control, we are to consider the par-, ticular clause in connection with all the other parts of the will.
Besides the general requirement that construction of the will should lean away from conclusions involving partial intestacy, there is in the introductory clause an expression of the purpose of the testator through the will to dispose of all the real and personal property that he might own at the time of his death. This expression of the general purpose of the testator does not itself dispose of any property, but may be, found useful in resolving doubts, if any exist, which may be so resolved, in particular dispositive clauses. In the absence of terms apparently used in a technical sense, we must interpret the language as being used in its ordinary meaning.
We do not find in the will any particular mention of the money and the note shown by the executor’s reports and
We can not say that there is any patent ambiguity in the first clause. If there were any provision which upon the face of the will remained so incorrigible that it could not be construed without the aid of extraneous facts, the provision, would be void. But there is nothing which would require or permit us t© say that the first clause does not dispose of the household goods to the appellants.
There is no latent ambiguity such as occurs where there is in fact more than one subject or object answering the description in the will; but it is claimed, in effect, that, viewed in the light of extraneous facts, the first clause should be regarded as an expression of the intention to give to the appellants the personal property, including the household goods and the money on hand and the proceeds of the note, and that the words “consisting of,” etc., should be treated merely as a misdescription of what the testator by this clause gave to the appellants.
The first clause is adapted by its terms to the disposal of the particular species of the testator’s personal property which was made up of his household goods, which it appears as a matter of fact he possessed, and to hold that it also dis
The case is not parallel with such cases as Cleveland v. Spilman, 25 Ind. 95, where a testator being the owner of the south half of the nortmaesf quarter of a certain section of land devised “my land, being the south half of the northeasi quarter,” etc., or Martin v. Smith, 124 Mass. 111, where the testator being seized and possessed of two lots of land, situated one on the north side of a certain street and the other on the south side, devised “all the real estate I may die possessed of to” etc., “which property is situate on the north side of said street.” In such cases the error in description is manifestly an. error in particularly describing the whole of what is included in the preceding general description; and there is not in such cases, as there is in this, a mere limitation of the general description to a particular species of property, being one of numerous kinds of property to which the preceding general terms are alike applicable. '
The judgment is affirmed.