27 Ind. App. 369 | Ind. Ct. App. | 1901
Appellees brought this, action to quiet their title to certain real estate in Clay county. The appellants answered by a general denial and filed a cross-complaint averring that they were the owners in fee of the same lands, subject to an estate for the life of one Ann MclSTicholas Shannon, and asking to have their title quieted. A general denial was also filed to the cross-complaint. The cause was submitted to the court, special findings made, conclusions of law stated, and judgment rendered for appellees. The assignment of error is that the court erred in its conclusions of law.
The finding of facts is in substance as follows: That on the 12th day of June, 1862, one Patrick Hyland was the owner in fee simple of the real estate in controversy, to wit: The southwest quarter of the northwest quarter of section thirty-one, township nine north, range six west, in
That Patrick Hyland died in March, 1864, and that the will was probated; that he died seized of said real estate; that Ann McNicholas took possession of the same immediately after his death, and continued to hold tire same until she disposed of it as hereinafter set out; that said devisee, Ann McNicholas^ was married to John J. Shannon, Eeb
The conclusion of law stated was that the plaintiffs (appellees) were the owners of said real estate and entitled to have their title quieted. The question for decision is whether Ann McNicholas (Shannon) took under the will a fee simple, or a less estate. The appellants maintain that the will created a life estate in Ann McNicholas with remainder over to her children contingent upon her having children born in wedlock; that such remainder vested in the first child born subject to open upon the birth of a second child to let it in, and so on. It is argued that such construction accords with the provision that the estate was to be held independent of the future husband, and gives effect to every part of the instrument, vesting the fee in the children free from encumbrance.
The appellee maintains that the testator intended to devise the land in fee simple; that Ann McNicholas could not hold “independently of all others”, if she had only a life estate; that she could not “transmit” land to her children unless she first owned it herself; that he ignorantly thought he could put the title to the devised premises in such shape that the devisee could dispose of it in any manner she deemed proper without consulting her husband; that it was the niece he was seeking to safeguard, and not her children, In support of this theory appellees invoke the rules that the law favors the vesting of estates. That a will is not to be construed so as to create a partial intestacy unless the language compels such a construction, and that where the intention is doubtful the will should be so construed as to cast the estate where the law would cast it in the absence
The appellee supplements this proposition by the further one that whenever an intention to dispose of the fee can by any fair inference be drawn from the will, that the technical rule must be excluded, and that very slight circumstances will be laid hold of as indicating such intention, and asserts that the terms of the will bring it within the exception. The attorneys upon both sides have argued the case with clearness and ability. The principles of construction have been correctly stated, leaving for this court the most difficult task of determining what the testator actually meant as shown by the language used. Many years ago an eminent lawyer declared that “a case upon a will has no brother.” The statement holds good. What the testator’s intention was can not be absolutely known. The difficulty does not come from any lack of purpose on his part, but from the inaptness of expressions used hy the writer of the will, presumably, it is said, the testator himself, certainly one not skilled in the work or accustomed to legal terms.
I:Ie intended that the real estate devised to Ann McNicholas should at her death become the property of her children free from all encumbrances and debts. If she took a life estate, remainder to the children, that result is assured, giving effect to the whole will. If the devise is construed as a fee simple, the latter part of the clause has no effect. The construction which gives effect to the whole instrument must be adopted. Butler v. Moore, 94 Ind. 359; Brumfield v. Drook, 101 Ind. 190; Kilgore v. Kilgore, 127 Ind. 276; Eubank v. Smiley, 130 Ind. 393; Shouler on Wills §559.
She having no children at the testator’s death, the re
The fee vested in the heirs of the testator subject.to the contingency of the devisee having children. Waters v. Bishop, 122 Ind. 516. The word children is a word of purchase and not of limitation. Ridgeway v. Lanphear, 99 Ind. 251; Shimer v. Mann, 99 Ind. 190, 50 Am. Rep. 82.
The provision that tbe share shall be transmitted to their
The exception to the rule that a life estate only was devised is not created by the will, its provisions pointing toward a life estate. If Ann McNicholas took a fee, she could not hold it independent of the husband, since upon her’ death he would by virtue of the statute take an interest in it. Neither can it be assumed that the testator was ignorant of the law. It is quite possible that he was, but it is very probable that he was not. The presumption is that he knew the law, and a construction according with that presumption must be preferred. The clause “they I emphatically will to hold * * * independently of all others” can not fairly be taken alone, but must be considered in connection with the qualifying and following words, “he independently of his wife, and she of her future husband when she shall marry, and transmit that share, respectively, to their children, if they shall have such, free from all encumbrances and debts”.
There is no discretion vested in the first takers as to the future disposition of the real estate as in Rogers v. Winklespleck, 143 Ind. 373; the testator made his own disposition and made it “emphatically”. It is believed that he intended Ann hfcNicholas should take a life estate, and the appellants, her children, the remainder in fee. The conclusion of law upon the facts found should have been to the effect that appellants were the owners in fee of said real estate, subject to an estate for the life of Ann IVEcNicholas, and entitled to have their title quieted thereto.
Judgment reversed, with instructions to restate conclusions of law, and render judgment for appellees in accordance with this opinion.