81 Ind. App. 96 | Ind. Ct. App. | 1923
Appellants filed their complaint against appellees to quiet their title to the real estate involved in this action. Certain of the appellees, including William Lang, filed their separate cross-complaints against appellants. Appellants filed a demurrer to the cross-complaint of said William Lang, and pending the same, the complaint and all other cross-complaints were withdrawn. The court thereupon overruled said demurrer, and appellants refusing to plead further, judgment was rendered in favor of said cross-complainant, quieting his title to the real estate in question. The action of the court in overruling said demurrer constitutes the only error assigned on appeal.
The cross-complaint of said William Lang alleges, in substance, among other things, that he is the owner of the real estate in question (describing it) ; that for more than fifty years prior to July 20, 1908, one Henry Vaubel, Sr., had been the owner and in possession of said real estate: that during said time, he resided there
“I give and devise to my grandchildren Elizabeth and Huida Vaubel, children of my son Moritz, my homestead containing 118 acres more or less, to have and to hold the said real estate subject to the following conditions, viz., in case either one should depart this life leaving no child or children surviving them her share shall go to her sister and in the event both should depart this life leaving no child or children surviving, then said real estate shall descend and go to my heirs. Said children shall not dispose of or encumber said real estate until they arrive at the age of 21 years, after which they may convey the same in fee simple, said real estate is described as follows, to-wit: Part of the northeast quarter of section nine (9) township six (6) range twelve (12) estimated to contain 118.76. I give and bequeath to my grandchildren Elizabeth and Huida Vaubel, children of my deceased son, Moritz, the sum of $150 each.”
That said will was duly admitted to probate and fully executed, and the estate of said decedent was thereafter adjudged finally settled; that the said Elizabeth Vaubel was born on October 25, 1895, and died on August 13, 1917, and the said Huida Vaubel was born in October, 1898, and died on February 13, 1921; that neither was ever married, and each died intestate and without issue ; that immediately after the death of said testator, the above-named legatees entered into the possession of said homestead, containing about 118 acres, and they and their grantees have held possession thereof continuously until the commencement of this action; that after said Elizabeth Vaubel reached the age of twenty-one years, she executed to one Kate S. Vaubel a deed, with covenants of warranty, for an undivided one-half of said real estate, subject to a life estate in her favor;
We will first determine whether the event mentioned in said second item of the will, which, if it occurred, would cause the real estate in question to descend to the heirs of said testator, referred to the death, at any time, of said Elizabeth and Huida Vaubel, leaving no child or children surviving, or to a time prior to the death of the testator. The rule to be observed in determining this question may be stated as follows: Where real estate is devised in terms denoting an intention that the primary devisee shall take a fee on the death of the testator, coupled with a devise over in case of his death without issue, courts will hold that the words refer to a death without issue during the lifetime of the testator, unless the contrary appears from the will itself. Fowler v. Duhme (1896), 143 Ind. 248, 42 N. E. 623; Watson v. Tracy
Having made the determination stated above, it would clearly be our duty to reverse the judgment were it not for the presence of the following provision in said item 2 of the will under consideration: “Said children shall not dispose of or encumber said real estate until they arrive at the age of 21 years, after which they may convey the same in fee simple.” In seeking to ascertain the intention of the testator, we must consider this provision in its relation to other portions of the will, and, if possible, give it effect. Hardy v. Smith (1919), 71 Ind. App. 688, 123 N. E. 438; Fenstermaker v. Holman (1902), 158 Ind. 71, 62 N. E. 699. Appellants have evidently recognized this,
Passing now to that part of the clause under consideration which relates to a conveyance of the real estate in question, we note that appellant contends that it does not confer authority to convey, but merely expresses the testator’s opinion of the rights of the primary devisees, Elizabeth and Huida Vaubel, in that regard, when they arrived at the
But appellant contends that, even if said clause be construed as conferring on said primary devisees the right to convey the real estate, after they arrive at the age of twenty-one years, it only gives them a right to convey the interest given them in the first part of said item 2, viz.: a determinable fee. We cannot concur in this contention for the following reasons: (1) To give the clause that meaning would render the power conferred meaningless, since said devisees had such right, viz.: the right to convey their interest after they arrived at the of twénty-one years, without the presence of such clause in the will.
Giving the clause we have been considering the construction indicated, we are of the opinion that the item of the will of which it is a part, created a determinable fee in Elizabeth and Huida Vaubel, with an executory devise in favor of the testator’s heirs, which would have ripened into a title in the event that both of the primary devisees had departed this life, prior to the time they arrived at the age of twenty-one years, leaving no child or children surviving them; that said determinable fee of said primary devisees ripened into a fee simple when they arrived at such age, by reason of the power given them to dispose of the absolute title; and that thereafter, the executory devise in favor of such heirs was void. We assume that the first part of our conclusion, relating to the creation of a determinable fee and an executory devise, requires no argument to support it, and hence, we shall limit a statement of our reasons to those which apply to the latter part thereof, relating to the enlargement, of the title of the primary devisees, and the extinguishment of