113 Ind. 323 | Ind. | 1888
The provisions of the will over which this controversy is waged are these : “ I give and devise to my beloved wife the farm on which I now reside, as well as all my other real estate of which I may die legally possessed; also,, all the personal property of whatever description of which I may die the owner, to have and to hold during her natural life; and at her death it is my will that whatever remains of my estate, whether real or personal property, in the hands of my wife, shall be equally divided among my children then living and the descendants of such as may be dead, share and share alike, taking into consideration all advancements which may have been made either by myself or my wife. I do hereby nominate and appoint my beloved wife executrix of this/my last will and testament. I authorize and empower her, if it shall be necessary in order to pay my debts or to make ad
The testator intended by this will to devise to his wife an estate for life, and to give his children living at her death, and the descendants of such as were then dead, a vested remainder.
It is true, the testator added to the life-estate a power of disposition, but this does not change the effect of the will upon property remaining in the possession of the widow at the time of her death. There is not here, as in Van Gorder v. Smith, 99 Ind. 404, an absolute power of disposition ; on the contrary, the power is limited to a designated purpose. The clear implication is, that the uneonsumed property vests in the children living at the time of the widow’s deaih, and the descendants of those that were then dead. Goudie v. Johnston, 109 Ind. 427; Giles v. Little, 104 U. S. 291; Green v. Hewitt, 97 Ill. 113 (37 Am. R. 102).
If this conclusion be not correct, then all the provisions of the will concerning advancements, as well as the clear provision directing what disposition shall be made of property in the hands of the widow at the time of her death, must be thrust aside as meaningless. But these provisions are not without meaning, and were not idly written in the will, nor were they employed by mistake, and they can not, therefore, be disregarded. Shimer v. Mann, 99 Ind. 190 (50 Am. R. 82).
If the widow took the entire estate, then there would be no force in the provision respecting the disposition of the property in her hands at her death, so that the only reasonable conclusion is that she took a life-estate, with power of disposition, for the specific purpose of paying debts and making advancements. If this was her whole estate and interest, then, of necessity, the remainder must go, as the will directs,
Our reason for asserting that the estate in expectancy is a vested and not a contingent remainder is, that there was no uncertainty as to the taking effect of the estate, although there was as to the time it would take effect. As Judge Sharswood says: “ It is the uncertainty of the right which renders a remainder contingent, not the uncertainty of its enjoyment.” There is here no uncertainty as to the event on which the particular estate must determine, for, as Preston says, it is morally certain the life tenant must die, so that if there is any uncertainty it must be as to the persons to whom the remainder is devised. 4 Kent Com. (12th ed.) 203, note. But we think that, construing all the provisions of the will together, it must be held that the remainder was intended to be in the nature of a vested one. If this be not correct, then a great part of the will must be disregarded, and great injustice result, for, as the widow is authorized to make advancements out of the estate, the persons to whom she must make them are necessarily designated. If she does
We are by no means clear that the heirs take by purchase and not by descent, for, eliminating the provisions as to the life-estate of the widow, the evident intention was to create just such an estate as the law would cast by descent upon the children and grandchildren. If this be so, then the case is brought directly within the well reasoned cases of Davidson v. Koehler, 76 Ind. 398, Stilwell v. Knapper, 69 Ind. 558 (35 Am. R. 240) and Davidson v. Bates, 111 Ind. 391. But however this may be, we deem it clear that the intention of the testator was to give his children and their descendants or heirs the same estate as the law would give them, that is, that the children living should share alike, and the children or descendants of the dead should take the share that would have fallen to the father or ancestor had he been living. To put our conclusion in more technical terms, we decide that the beneficiaries of the testator’s bounty take per stirpes and notpe? capita.
Judgment affirmed.