Pattison v. Doe on the demise of Thompson

7 Ind. 282 | Ind. | 1855

Gookins, J.

Trial by the Court on the plea of not guilty. Finding for the plaintiff. Motion for a new trial overruled and judgment. The defendant appeals. The case was tried on the following agreed state of facts:

Edward Pattison died in 1827, seized in fee of the land in controversy, leaving nine children. Before his death, he made and published his last will and testament, by which he devised to each of his seven sons a tract of land, reserving a life estate out of one tract to his wife. He gave specific and pecuniary legacies to his two daughters, of whom the plaintiff’s lessor was one, with a residuary clause disposing of all his property, goods and chattels that might remain. The fourth devise in the will was as follows:

“ I also give and bequeath unto my son, Tames Pattison, the south-east quarter,” &c., describing the tract in controversy.

Tames Pattison died in 1849, having devised the tract of land to Martha Pattison, the defendant. Both wills were duly proved and recorded.

On this evidence, the Circuit Court gave judgment for the plaintiff for one-ninth part of the land, upon the ground that Tames Pattison took a life estate only under the devise to him.

This was erroneous. The will disposed of the entire estate of the testator; and it would be subversive of the first and most obvious rule of construction, that is, the intention of the testator, to hold that a life estate only passed by the devise. Lutz v. Lutz, 2 Blackf. 72, note 1. If, upon examining the entire will, the intention to pass a fee is apparent, a fee will pass, although the word heirs is not used. Doe v. Harter, 7 Blackf. 488. That such was the intention of the testator appears from the fact already adverted to, that he disposed of all his property; and from the fact that the devises are all alike, the word heirs not occurring in the entire will; and especially from the residuary clause, which was that his remaining property, goods and chattels should be divided and given to those who should get the worst lots of land. This language is quite as strong as that used in Doe v. Harter, supra.

S. Major, R. D. Logan and N. B. Taylor, for the appellant. B. W. Wilson, A. W. Hubbard and L. Sexton, for the appellee. Per Curiam.

The judgment is reversed with costs. Cause remanded, with instructions to the Circuit Court to grant a new trial, with costs to abide the event of the suit.