64 Ind. App. 83 | Ind. Ct. App. | 1915
Lead Opinion
This was a suit to quiet title to 145 acres of real estate in Marion county, Indiana. The ques
The special finding of facts» is in substance as follows: That Emma Antrim died September 10, 1909, in Marion county, Indiana, testate, the owner of the real estate in controversy; that she left no “descendants and neither father nor mother living at that time, but left surviving her as her only heir at law her husband,” the appellee; that her will was duly probated. The will, which is set out in full in the finding, makes provision for the payment of her debts, funeral expenses and the erection of a monument. It mentions her brothers and sisters and states that they have been provided for in the will of her mother and that she gives them nothing, except her brother James E. Rowney, who has accumulated no property, for whom she makes provision for support in certain contingencies.
Items Nos. 5 and 6 of the will are as follows:
“Item 5. I give, bequeath and devise to my beloved husband, Charles J. Antrim, for and during the term of his natural life, all my property both real and personal, which shall remain after the carrying out of the provisions of this testament, in lieu of his rights in my estate as my widower under the statutes and the law of the State, subject, however, to the charge upon his said life estate in item 4 of this instrument in favor of my brother James E. Rowney.
Item 6. At the death of my beloved husband, I*88 give all my estate both real and personal, to the children of my nephew, Isaac Reeder, who shall survive my husband, but said property shall not be sold by them or any of them until after ten years after my husband’s death, at which time their title shall be a fee simple, subject, however,-at all times to the charge created at item 4 of this will in favor of my brother James E. Rowney.”
The court also finds that on September 20, 1909, appellee duly filed his written notice of his intention to take under the law and his declination to take- under the provisions of the will; that James E. Rowney died before the death of the testatrix; that Isaac Reeder mentioned in item No. 6 of the will survived the testatrix ; that appellants are the only living children of said Isaac Reeder and the only children born to him; that appellee has at all times since the death of his wife been in the exclusive possession of the real estate in controversy ; that the estate of the testatrix has been duly administered and settled according to law.
In substance, the trial court held that the testatrix did not intend to devise the real estate in fee simple to appellants until the expiration of ten years after the death of appellee, her husband; that such attempted devise of a fee-simple title to appellants is in conflict with the statute of perpetuities and void; that appellee is the owner in fee simple of one-third of the real estate in controversy and of a life estate in the two-thirds part thereof; that the appellants who shall survive appellee are contingent remaindermen, and will be the
Appellee has assigned cross-errors by which he questions the correctness of the conclusions of law in so far as they give any interest to appellants and under which they contend that item No. 6 of the will is void and that appellee is the owner in fee simple as sole heir of his wife of all the real estate in controversy.
The gist of appellants’ contention is that the intention of the testatrix was to give appellants a fee-simple title to her real estate, subject to the life estate of appellee; that the provision of item No, 6 denying appellants the right of alienation for ten years subsequent to appellee’s death is a limitation on the use and enjoyment of the estate and does not render the devise void as being in conflict with the statute of perpetuities; that if such restriction of the right of alienation is void it does not invalidate the devise.
In support of these contentions appellants invoice certain rules of construction, viz.: (1) We are required to ascertain and carry into effect the intent of the testatrix where it can be done, without disregarding or overruling some established rule of law, and in ascertaining intent we must consider all the provisions of the will. (2) The presumption is against intestacy as to any part of the estate where a will has been made, and where there is no devise over of the residue of- the estate it aids the court in determining that the testatrix intended to devise all of the estate. (8) The law favors the vesting of estates at the earliest possible time consistent with the provisions of the will. (4) The law presumes that the testatrix did not intend to violate the rule against perpetuities, (5) Adverbs of time used in a will gen
Appellee admits that the will evidences an intention of the testatrix to devise an estate to appellants but asserts that in this suit neither appellants nor appellee are seeking to carry into effect such expressed intention ; that appellants are seeking to avoid and annul the clearly expressed intention to deny them the right and power of alienation for ten years after the death of appellee; that in electing to take under the law appellee acted within his legal rights; that the intention to deny appellants the right of alienation for ten years after appellee’s death is as clearly expressed as the intention to devise them an estate; that the restriction on the right of alienation is not a limitation on the use and enjoyment of the estate, but clearly and definitely takes from appellants one of the essential elements of a fee-simple title and violates the rule against perpetuities.
There is no controversy in the case as to the general rules employed in the construction of wills, but the contentions of the parties are sharply divergent as to the meaning and effect of the provisions of the will and the rules of law_ applicable thereto.
Gray in his treatise on “The Rule against Perpetuities” (3d ed. §§629, 630, 632) says: “The Rule against Perpetuities is not a rule of construction, but a peremptory command of law. It is not, like a rule of construction, a test, more or less artificial, to determine intention. Its object is to defeat intention. Therefore every provision in a will or settlement is to be construed, as if the Rule did not exist, and then to the provision so construed, the Rule is to be remorselessly applied. * * * Our first duty is to construe the will; and this we must do, exactly in the same way as if the Rule against Perpe
Borland on Wills and Administration, pages 301, 302, says: “Where the language of an express provision of a will is free from doubt, a consequence resulting from it that the testator would not have favored will not be permitted to affect the construction of the will and much less to prevent the application to it of a settled rule of law. * * * Where the provisions of a will are partly legal and partly illegal, the legal parts will be upheld if capable of separation from the illegal. If the elimination of the invalid portions so changes the general scheme of the testator as to make the remaining portions amount to a new and different will, the whole must fail.”
In Ruston v. Ruston (1796), 2 Dall. 243, 1 L. Ed. 365, it is said: “The intention of the testator shall govern the construction of a will in all cases, except where the rule of law overrules the intention, and this is reducible to four instances. 1. Where the devise would make a perpetuity. 2. Where it would put the freehold in abeyance. * * * 4. Where a fee is limited on a fee.”
While we have held the language of the first part of item No. 6 of the will, considered apart from the succeeding phrase limiting the right of alienation, sufficient to devise a fee-simple title, such conclusion still leaves undetermined the legal effect of the whole clause when viewed in the light of all the provisions of the will. The further questions remain, viz.: (1) Does the language permit us to hold that the testatrix intended to devise a fee-simple title without an equally clear intention of denying to the devisees the right of alienation for the specified time? (2) Can we eliminate the latter clause as void and yet give effect to the former?
Such being the dominant intention of the testatrix and the general scheme of disposition adopted by her, it leaves but one further question to decide to ascertain the legal effect of the provisions of the will, viz., Can the illegal clause against alienation be eliminated and
The principal proposition involved in the question has been decided by our Supreme Court in Fowler v. Duhme, supra. In that case the will of the testator in one clause devised certain real estate to his children, “ ‘share and share alike in equal portions, and to their respective heirs forever,’ ” subject to certain conditions, one of which was that “ ‘no part of the real estate situate in Benton county, Indiana, * * * shall be sold or alienated by my said children, or any of them, or their heirs, for the period of twenty-five years from and after the date of the execution of this my will.’ ” The court held that the clause in restraint of alienation violated the statute against perpetuities and was void; that the devise of the fee-simple title was valid notwithstanding the void provision in restraint of alienation.
The case at bar presents the further question of the effect of the void provision where the language employed in stating it is closely connected with, and is equally as apt and clear as, the language of the devise. This phase of the question does not seem to have been presented, considered or decided by the court in Fowler v. Duhme, supra, unless by inference from the discussion of other questions. Be this as it may, in view of the dominant intention of the testatrix, we hold that the devise in clause No. 6 may be sustained and the provision in restraint of alienation held void without disturbing or ignoring the general scheme of disposition adopted by the testatrix in executing her will. By this construction we avoid partial intestacy in so far as it results from the provisions of the will and give effect to all the essentially controlling elements of the intention of the testatrix as evidenced by the whole instrument. As supporting this conclusion, we cite Fenster
We therefore hold that appellee is the owner in fee-simple of the undivided one-third part of the real estate in controversy and of a life estate in the undivided two-thirds part thereof; that appellants are the owners of the fee-simple title to the undivided two-thirds part of said real estate subject to appellee’s life estate therein. The judgment is therefore affirmed in part and reversed in part, with instructions to the lower court to restate its conclusions of law to conform with this opinion and to render judgment accordingly. It is also further ordered that the appellants pay half, and appellee half, of the costs of this appeal.
Rehearing
On Petition for Rehearing.
The gist of the arguments against this construction. is, that the language is not sufficient to. devise such title and that the above quoted portion of item No. 6 cannot be separated from the part that immediately follows it. The conclusion announced is supported by the decisions cited, and is also fortified by the following rules of construction.
The petition for a rehearing is overruled.