159 Ind. 106 | Ind. | 1901
— This action was brought by appellant to contest the will of her deceased husband. The testator left no children or their descendants, or father or mother, surviving him. Appellees, other than Brown, executor, are the persons named in the residuary clause in the will. Appellant, before the commencement of this action, renounced the will, in conformity with the statute. The complaint is in five paragraphs. In the first and second paragraphs it is sought to set aside the will and the first codicil and the probate thereof, on the ground that the will is conditional, and that the condition upon which it is to take effect never happened. The same relief is sought in the fifth paragraph, on the ground that the will is void, because in violation of the statute, §§8133, 8134 Burns 1901, against perpetuities. The fourth paragraph contests the second codicil, executed November 11, 1896, and the third codicil, executed September 28, 1897, on the grounds that the testator was of unsound mind when the same were executed, and that each of said codicils was unduly executed. The third paragraph proceeds upon the theory that the testator having died without issue, and leaving no father or mother surviving him, appellant, his widow, having renounced the will, is, under §2648 Burns 1901, entitled to all of his estate, notwithstanding the will. A demurrer for want of facts was sustained to each paragraph of the complaint, and, appellant refusing to plead further, judgment was rendered against her. The errors assigned call
- The questions involved only render it necessary to set out the disposing part of the will and the first codicil, which are as follows: “I, William C. Murphey, being of sound mind and memory, do make, publish and declare this to be my last will and testament. Item 1. I give, devise and bequeath unto my wife, Louisa W. Murphey, in lieu of all her interest as widow in any real estate of which I may die seized, and in lieu of any claim to or interest in my personal property, the house and lot in the town of Crown Point, in and upon which I now live, together with all the furniture and belongings in and about said house, including all utensils and all other articles of household property, either in or about said house, or in or about the bam on said lot, including also all live stock which I may own, but not including the paintings and pictures which were executed by my daughter, Anna Florence Murphey, deceased, all of which paintings and pictures, in case I die without issue, either living or posthumous, I give to Georgia Black, daughter of N. E. Black, of Indianapolis, Ind. Item 2. I direct that my executor, hereinafter named, shall immediately upon my death take possession, charge, and control of all my personal property, including all - moneys, rights, choses in action, credits and effects which I may own, or in which I may have any interest at the time of my death. (Excepting, of course, all the personal property herein specifically given or bequeathed to other persons.) And he shall have the entire care and management thereof, but he shall not dispose of, but continue to hold, manage, and control my bank-stock and all my interests in the First National Bank of Crown Point, until the 11th day of September, 1894, when the charter of said bank expires; that he shall, as far as possible, pay my debts, if any, out of the proceeds of such personal property, other than said bank-stock, as shall come into his hands,-but in case it is in
First Codicil. “I, William C. Murphey, being of sound mind and memory, do make, publish, and declare the following codicil to my last will and testament, dated the 2d day of May, 1885. Item 1. I do hereby revoke item 7 and nominate and appoint as executor of my last will and testament, Geo. R. Murphey, of New Castle, Indiana, in place of Julius W. Youche. Item 2. It is my will that the name of my sister Mary M. Bond should appear in item 4, and I desire that she should be an equal heir or beneficiary with my other brothers and sisters in my estate.
Appellant insists that said will “is conditional, dependent upon the death of the testator prior to September 11, 1894, and that the testator having lived beyond that day the condition upon which said will, and especially items two," three, and four were to take effect, has not happened, and that, therefore, the will as a whole, and especially the disposing part thereof as contained in said items,' never took effect, and is void. It is true that a testator has the 'right to make a will to be operative only on the happening of a contingent event. Lindsey v. Lindsey, 45 Ind. 552; Gibson v. Seymour, 102 Ind. 485, 52 Am. Rep. 688; 1 Redfield, Law of Wills (4th ed.), 176, 180; Jarman, Wills (6th Am. ed. by Bigelow), 25, 26; Schouler, Wills (3d ed.), §§285-289; 29 Am. & Eng. Ency. Law, 130-134. But no will has ever been defeated by such condition, except where the intention of the testator that it should not operate clearly appeared from the language of the will. Redfield, Law of Wills (4th ed.), 177; Schouler, Wills (3d ed.), §286; Cody v. Conly, 27 Graft. (Va.) 313, 320, 321; French v. French, 14 W. Va. 458, 499, and authorities cited. In Cody v. Conly, supra, on page 320, the court said: “The cases on this subject show, that while a person may, certainly, make a conditional will, his intention to do so must appear very clearly on the face of the will; and if such an intention do not so appear, the will must be regarded as unconditional.”
Judge Redfield in his work on wills (4th ed.), volume 1, page 177, says: As questions of a very embarrassing nature often arise in regard to the proper testamentary character of papers left, in the form of a will, but expressed in terms more or less contingent, it must be borne in mind, that, in that class of instruments, the question must turn
It is often the case that particular provisions of a will are made contingent to meet possible changes in the estate or the beneficiaries, but it is exceptional that contingencies are created that may result in partial intestacy. It was said by this court in Spurgeon v. Scheible, 43 Ind. 216, on page 220: “A construction which would result in partial intestacy is to be avoided, unless the language of the will is such as to compel such construction. Cate v. Cranor, 30 Ind. 292.”
It is insisted by appellant that the testator in this case intended his will to be ineffectual unless he should die before September 11, 1894. No such condition is expressed in the instrument executed May 2, 1885. No provision in the will is expressly made to depend on such a contingency. Unless, therefore, it clearly appears from said instrument, taken as a whole, that it was the intention of the maker that it should not take effect unless he ’ died before said date, the same must be held unconditional and valid. The provisions of the will must be such that they can not be executed after that date without antagonizing the testator’s plain intention, or it can not be regarded as contingent. The testator having died after September 11, 1894, without issue, and appellant, his widow, having renounced the will, and the specific legatees having died under such circumstances that their several legacies lapsed, the residuary bequest contained in item four of the will is the only one left for enforcement. While the legal effect of a will must be determined according to the conditions as they exist at the death of the testator, all the provisions of the instrument, and the situation at the time of its'execution, may be considered in determining his intention. The first clause of the will -declared it to be the “last will and testament” of the testator, without any condition. The pro
The third item of the codicil of August 1, 1891, three years before September 11, 1894, gave Rose Morris $1,000, to be paid one year after the testator’s death. The death of thq, legatee caused this bequest to lapse, but that event can not affect the testator’s intention at the time he made the provision. This bequest is absolute and unconditional, and is in no way dependent on the expiration of the bank charter. We have these two items making absolute gifts of property, wholly independent of any other provisions in the will, capable of enforcement, showing conclusively the intention of the testator to die testate, so far at least as the property mentioned in said items is concerned, regardless of the date of his death. It is clear, therefore, that the testator intended said will to be final and not provisional. Did the testator intend any of the other provisions of said will to be conditional ?
Looking at the will as a whole, we think it is clear that it was the purpose of the testator to dispose finally of all his property, but to postpone the distribution of that part not mentioned in item one until after the expiration of the bank charter, if he died before that time. Such intention made it necessary to provide some arrangement for its management and control until that date. Eo provision was made after that time, for the reason that it was then to be distributed to the beneficiaries. It nowhere appears by implication or otherwise that the bequests were to be invalid unless the testator died before the expiration of the bank charter, September 11, 1894. The testator may have believed he would die before the expiration of the bank charter, and
Ho reason has been suggested why the testator should have desired that the question, whether the- greater part of his large estate should go to his wife or his collateral kindred, should depend on whether he was alive on September 11, 1894. TIis purpose no doubt was to increase his estate from an investment he regarded as likely to be profitable, and., more securely to guard it, he put limitations on the power of the executor to sell the bank-stock; but this was a purely administrative matter, and could have had nothing to do with his desire concerning the ultimate disposition of his estate.
It is urged that the will should be held conditional, for the reason that any'other construction would cut off a child of the testator, had one been born after September 11, 1894. Provision was made for the possibility -of children, and it must be presumed that the testator made all the provision that seemed necessary to him. The presumptions of law are against conditions that will result in intestacy, and it - is fair to presume, the contrary not appearing, that the testator had lived long enough with appellant when he made the will to know something about the probability of children, and that he knew or had reasonable grounds to believe that, according to the course of nature, if no children were born before the 11th clay of September, 1894, over nine years after the date of the will, there never could be any.
Item four provides that if there was no child alive at that time, “then- in that case I give, devise and bequeath upon the expiration of the bank charter and the final settlement of my estate” all the rest and remainder of the property to those who may be then living of the persons named as residuary legatees. This required that the bank charter must have expired, and the estate must have been finally settled before the beneficiaries would be entitled to the possession of the property. The right to the legacies, however, vested in the residuary legatees on the death of the testator, whether that occurred before or after September 11, 1894. Bruce v. Bissell, 119 Ind. 525, 12 Am. St. 436; Amos v. Amos, 117 Ind. 37; Aspy v. Lewis, 152 Ind. 493, 496; Heilman v. Heilman, 129 Ind. 59. Nor were the beneficiaries to be ascertained on said date, as claimed by appellant.
A subsequent part of said item says, “but should any of said persons at the time of the final settlement of my estate be dead, with lawful issue surviving them at the time of the final settlement of my estate, then such surviving issue shall take the portion which such deceased, if then living, would have taken.” Thus it appears from the express language of the will that the testator intended the estate to go to the beneficiaries living, not at the expiration of the bank charter, but at the final settlement of the estate, and if any
Appellant next insists that the will is void, on the ground that it violates the statute against perpetuities. The law-only looks to the situation at the time of the testator’s death, to determine the effect of a will. A will may, therefore, he in violation of the statute against perpetuities when executed, and he void for that reason, when applied-to the conditions then existing, but events may happen, before the death of the testator, that will remove all such objectionable features, and the estate created by the will at the death of the testator be valid. McArthur v. Scott, 113 U. S. 340, 5 Sup. Ct. 652, 28 L. Ed. 1015; Gray, Perpetuities, §231; 1 Jarman, Wills (5th Am. ed.), 519.
The testator having died without issue, after September 11, 1894, and the specific legacies having lapsed by reason of the death of such legatees, items one and four were the only effective provisions of said will at the death of the testator. It is clear that the provisions of item one are not in violation of the statute against perpetuities. Under item four, as we have shown, the rights of the residuary legatees vested on the death of the testator, and the possession thereof was postponed only until the debts and funeral expenses were paid. It is evident that this item does not violate said statute.
The next position of appellant is that the testator having died leaving neither descendants nor father nor mother, and appellant having renounced the will, takes all of his property by virtue of the act of 1891, being §2648 Burns 1901, §2488a Horner 1901, which reads as follows: “If a man die testate leaving a widow, one-third of his personal estate shall descend to said widow, subject, however, to its proportion of the debts of said decedent: Provided, however, that nothing in this act shall be construed to reduce the interest which the law now gives a widow in the estate of a deceased husband: And provided, further, that such widow
Prior to this act the husband could dispose of his entire personal estate by will, except the sum of $500 given his widow by §2424 Burns 1901, §2269 R. S. 1881 and Horper 1901. In the absence of a will, however, her interest in the personal property in no case was less than one-third, after the payment of the debts, and if there were no children or their descendants, and no father or mother, the widow, in case of intestacy, took the whole estate under §2651 Burns 1901, §2490 R. S. 1881 and Horner 1901.
It is insisted by appellant that the provision ip the act “that nothing in this act shall be construed to reduce the interest the law now gives the widow in the estate of her deceased husband,” gives the entire estate to the widow, as against her husband’s will, when she would have received it under the last named section without a will. We can not agree with appellant in this contention. The proviso grants nothing, it merely limits the operation of the, new act upon laws in force when it was enacted. City of Chicago v. Phenix Ins. Co., 126 Ill. 276, 280.
It follows from what we have said that the court did not err in sustaining the demurrer to the first, second, third, and fifth paragraphs of the complaint.
The court, however, erred in sustaining the demurrer to the fourth paragraph of complaint. That paragraph alleges that the testator was of unsound mind when he executed the codicils of November 10, 1891, and September 28, 1897, and that each of said codicils was unduly executed. , These ' grounds of contest were sufficient and properly stated.
The judgment is affirmed as to the first, second, third, and fifth paragraphs of complaint, and reversed as to the fourth paragraph, with instructions to overrule the de