143 Ind. 373 | Ind. | 1896
By the first eight items of his last will, Oliver Rogers gave to each of his eight children,
Of the lands of which the testator died seized, the widow, upon the theory that she held a fee simple absolute, conveyed one tract, upon which a subsequent grantee executed to Winklespleck a mortgage, and she executed, upon other of said lands, a mortgage to said Winklespeck. The appellants sued the appellees to quiet the title to said lands upon the theory that the widow, under said will, took a life estate with the remainder in fee over to the testator’s said eight children.
The trial court denied the correctness of this theory. The question for decision here arises upon the construction of said ninth item of the will, and if it be found that under it the widow took a fee simple absolute, the judgment of the trial court was correct, otherwise it is erroneous.
The words of the item devising “the residue of all my estate, both personal and real,” standing alone, would, without doubt, carry a fee simple absolute. Ross v. Ross, 135 Ind. 367 ; Roy v. Rowe, 90 Ind. 54 ; McMahan v. Newcomer, 82 Ind. 565; Smith v. Meiser, 51 Ind. 419.
It devises the residuum. No estate is left in the testator, after these words, which can become the subject of reversion. If the children were given an estate in the lands that conclusion must be reached from words deemed to be clearly repugnant to those devising the fee, and of such strength as to cut down the fee to a
In the last cited case, Mitchell, J., speaking .for this court, said:. “It must follow, therefore, if there was no estate left in the grantor after the creation of the precedent estate, vested in the first taker, he could create no remainder, as a remainder can only be created out of the estate left in the grantor after the creation of the particular estate.” . This proposition is axiomatic.
There is no room for claiming an executory devise since there is no attempted limitation to commence on a future contingency which defeats the primary estate. Appellants’ learned counsel expressly deny the possibility of an executory devise under the language of this will.
Our inquiries, therefore, are narrowed to these. Does the language following that creating a fee have the effect to' cut down that estate to one for life, and to limit the fee over to the children ? Or does it carry the fee in trust for the children?
While in the present case there is no doubt that the words of the devise create, in the first instance, a fee simple, the rules first quoted indicate that, where such an estate is given, the courts will be reluctant to accept accompanying words to denude it, and to redu'ce it to that lesser estate from which a plausible excuse will always rescue it. This reluctance has been frequently shown in those cases which hold that where a fee is given by the clear words of the will, subsequent words will not be permitted to cut down that estate unless they indicate a clear, decisive and unmistakable intention on the part of the testator to do so. Fowler v. Duhme, 143 Ind. 248 ; Orth v. Orth, 42 N. E. Rep. 277; Ross v. Ross, supra; Mitchell v. Mitchell, 143 Ind. 113, and cases cited in each.
If, therefore, the words which follow those creating a fee are susceptible of plausible construction consistent with the estate so created, that construction will be given them. If a life estate in the widow had been intended a simple form of words would have sufficed. If a remainder was intended to be given by the words suggesting a division upon the wife’s death, it is not a vested remainder, but is indefinite and contingent, depending upon the obedience of the children to their mother, “as she shall deem proper.” One who may be
In considering the effect of the closing clause of the item in question, the case of Ross v. Ross, supra, is in point. There the will provided that “After all expenses paid of settling my estate, I do hereby give and bequeath to my wife, Martha Ross, all my property, personal and real, after paying my just debts and claims; first, to pay to my son, Joseph W. Ross, five hundred dollars, and at her, my wife’s, death, he to come in equal heir with my second children. ” It was held that the devise, in the first instance, carried the fee and that under the rule that clear and decisive words were required to cut it down to a life estate the son took no estate from the provision that he should “come in equal heir with” the “second children.” The latter provision was carried down because of its repugnance to the fee devised to the first taker and as not clearly manifesting an intention to cut down that estate. The two provisions are not widely separated but are a part of one short item not broken by a period. There is no ground upon which to distinguish that case from the present in any effect of subsequent words to cut down a fee to a life estate. Nor do we believe it was the testator’s intention to create a life estate or to limit the fee over to his children.
If by item nine of the will the testator intended to make provision for his children, it is remarkable that he should have consumed the eight previous items in making merely nominal bequests to them and no less remarkable that he should have placed upon the per
There has been much discussion of the force and effect of the rule that a devise generally, coupled with the power of absolute disposition, carries a fee simple estate. As we understand that rule it has no direct application where the quality of the estate is not devised generally, but rather where it is particularly stated. It is the absolute power to sell which gives quality to the estate devised generally. The principle upon which that rule rests is influential in considering the question now before us. The absolute power of disposition, because it is of the essence of a fee simple, gives character to that estate
If we were not in error in expressing a contingency in which, upon the appellants’ theory, the widow would not be obliged to give to any one of the children, then the negative clause of the item would imply a power p,nd not a trust, a power to give or to withhold and not an obligation to give. It must be conceded that the words of this clause are not well chosen to make manifest the theory of either side of this controversy. They are most effectual to vest in the widow a large discretion with reference to the division of the estate devised to her. This discretion is inherent in the fee simple and needed no expression, and, as by no rule of construction can it be said that the discretion applies to an estate other than that devised to the widow, if that estate were but a life estate it would have been absurd to give her the right or to require her to dispose of that by the rule of discretion. In no view of the clause are we convinced that it contains a clearly expressed intention to create a trust estate or to narrow to a life estate the previous words carrying a fee simple.
The only theory upon which the negative clause of the item in question can be reconciled with the devise of a fee in the first instance is that the testator desired to enjoin obedience by his children to his widow and to advise the division of her estate, not of his, “in accordance with their obedience to her.” A division among them, not imperatively required, but £ ‘ as she shall deem proper.” The last quoted words are not in harmony with a construction of the word £ £ subject ” which would
The judgment of the circuit court is affirmed.