Alsman v. Walters , 184 Ind. 565 ( 1914 )

Morris, J.

Action by appellee against appellant, and others, to quiet title. There was a trial by the court, with special finding of facts, and conclusion of law. It is contended that the court erred in its legal conclusion. Luke Walters died testate on March 24, 1865. His will, was executed on March 7, 1865. The second item makes certain provisions for the widow. The third item reads as follows:

“I give and bequeath to my son, Francis M. Walters, during his natural life and after his death to his children surviving him in fee simple the following tract of land in the county and state aforesaid to wit: The west half of the northeast quarter of section thirty in township 7 north of range eight, west, containing eighty acres.”

The fourth item devises 80 acres to decedent’s daughter Mary Baker by the same language used in item three. The fifth item devises the residue of the land to four sons and a daughter, without any intervening life estate. The rights of the parties here depend upon the construction of item three of the will. When the will was executed and probated, Francis M. Walters, named in item three, was married and had two children, appellee William R. Walters, and Nancy Walters, who married one Luther Alsman, and was the mother of appellant. She died intestate in 1895, leaving appellant as her sole descendant. After the death .of testator said Francis had four other children born to him, viz., Permelia, Eliza, Luther and Luke. The latter died in infancy. Luther died intestate, unmarried and without issue, in 1898. Eliza died intestate, unmarried and without issue in 1890. Permelia married one Nash and died in 1896, leaving four children, viz., Sarah, Lawrence, Earl and Eliza. Lawrence and Eliza died in childhood. Sarah and Earl, are still living. Francis M. Walters, life tenant, died in 1909. The trial court concluded that appellee, the sole surviving child of the life tenant, is the owner of the land. We infer from appellant’s brief that the trial court was of the opinion that the fee of the estate devised remained in abeyance during the life of Francis M. Walters. If so, counsel for appellee do not rely on such theory. They claim that on the death of testator the remainder vested in the children of the life tenant but that the title taken was a conditional fee, which could vest absolutely only on the death of Francis.

1. The theory that the fee may be in abeyance, or in nubibus, is not without common-law authority. 2 Blackstone, Comm. 107; Illinois Cent. R. Co. v. Bosworth (1890), 133 U. S. 92, 10 Sup. Ct. 231, 33 L. Ed. 550. But it was ever odious and never recognized unless in cases of extreme necessity. 4 Kent, Comm. 257; 1 Fearne, Remainders, 409, 410. Nothing in this will justifies resort to such doctrine, and as appellee does not contend for it, we content ourselves with holding that it has no application.

2. 3. The gift here was to a class — children—with a life estate intervening. Where such a gift is immediate, the persons constituting the class are ascertained as of the date of the death of the testator. 40 Cyc 1475. Where a life estate is carved out, with a gift over to children of the life tenant, the gift not only embraces the children living at testator’s death, but also all who may come into existence during the life tenancy. In such case, the children alive at testator’s death take an immediately vested interest subject to a diminution of tbeir shares to let in such others as may be born during the life tenancy. Biggs v. McCarty (1882), 86 Ind. 352, 364, 44 Am. Rep. 320; 40 Cyc 1480. Counsel for appellee concede the above rule is correct, but they contend that at testator’s death appellee and appellant’s mother took a conditional vested remainder; that the shares of said two children of testator diminished to let in the after-born children; that on the death of any child, during the life tenancy, such deceased child’s interest divested, and immediately vested in brothers and sisters surviving on condition that any such interest should divest if the holder die during the period of the life tenancy; that appellee, as the sole survivor, owns the entire estate which was a conditional fee previous to the death of the life tenant, but on the happening of that event enlarged into a fee simple absolute. This theory is based on the assumed intent of the testator, as evidenced by the following clause in item three: “After his death to his children surviving him, in fee simple.” (Italics ours.) It is claimed that to hold that an absolute fee vested in any child that did not survive him, would require the elimination from the will of the words “surviving him,” because grandchildren are not included within the definition of “children”. This court has frequently decided that the meaning of the word child is not broad enough to include grandchild. West v. Rassman (1893), 135 Ind. 278, 297, 34 N. E. 991.

4. 5. There are certain well-established rules of construction of wills that are invoked when necessary. Where the intent of the testator is plain, there is no occasion for resort to such rules, because no construction is required. It will be observed here that while the testator makes the gift, after the death of Francis, “to his children surviving him” the estate devised is a “fee simple”. Bouvier’s dictionary defines fee simple as follows: “An estate of inheritance. Co. Litt. 1b; 2 Bla. Com. 106. The word simple adds no meaning to the word fee standing by itself. But it excludes all qualification or restriction as to the persons who may inherit it as heirs, thus distinguishing it from a fee tail, as well as from an estate which, though inheritable, is subject to conditions or collateral determination.’ ’ This court has quoted with approval the following definition: “the entire and absolute in-' terest and property in'land.” Brown v. Freed (1873), 43 Ind. 253, 256. In ascertaining the testator’s intent consideration must be given to all the words in the will, and a court is not at liberty to heed one phrase and disregard another.

6. 7. 8. Appellee’s contention would appeal with much stronger force were the phrase “in fee simple” eliminated; in such case the term “surviving him” might better denote an intent to limit the vesting of the absolute estate in those children only who might survive the first taker. However, considering the language used in its entirety, we are of the opinion that a clear intention to create such an estate as is contended for by appellee is not manifested, and, therefore, it is necessary to resort to established rules for the construction of ambiguous devises. Among such rules are the following: the law looks with disfavor on postponing estates, and the intent so to do, must be clear and not arise from inference or construction; it presumes that words postponing the estate relate to the beginning of the enjoyment of the remainder, and not to the vesting of such an estate; it favors the vesting of remainders absolutely, rather than contingently or conditionally; partial

intestacy will be avoided if possible. Aspey v. Lewis (1899), 152 Ind. 493, 52 N. E. 756; Moores v. Hare (1896), 144 Ind. 573, 43 N. E. 870; Myers v. Carney (1908), 171 Ind. 379, 84 N. E. 400; Campbell v. Bradford (1906), 166 Ind. 451, 77 N. E. 849. In Aspey v. Lewis, supra, a devise for life was made to testator’s wife, followed by this provision: “And I direct further that the above estate that is bequeathed to my wife shall be in the full possession of my only daughter, Maria Louisa, at the death or marriage of my wife, provided she shall be living; and if she is not living, at the death or marriage of my wife then the estate to go to the use of my brothers and sisters or their heirs.” The daughter died before the mother. It was held that the daughter took a fee which vested absolutely on testator’s death and descends to her heirs. In Campbell v. Bradford, supra, the following devise was considered: “At the death of my wife, I direct that all my real estate shall descend and go to my two sons * * * and if either of them shall be deceased leaving children surviving him then such child or children shall inherit all their father’s interest * * * and in case of either of my sons being deceased and leaving no child or children living then the surviving son shall inherit all my real estate at the death of my wife.” The testator died in 1881, leaving surviving him his widow and the two sons mentioned in the will, who executed a deed for the land. Afterwards, each of the sons died leaving a widow and a child, or children. It was held that the remainder vested in the sons on the death of testator and passed by the deed. In Tindall v. Miller (1896), 143 Ind. 337, 41 N. E. 535, this court construed the third item of a will reading as follows: “Third. I give and bequeath to my beloved wife, Sarah, the east half of my present dwelling house

and lot (describing the property) so long as she may live. She shall have the exclusive use and profits of said property, with the appurtenances thereto belonging, and at the death of my said wife the above described property shall pass absolute to my daughter, Julia, if she still survive.' If she shall be deceased, it is my desire that the property do pass to her heirs.” After the death of the testator the devisees conveyed the land by deed. The daughter died before the mother. In an action between those claiming under the deed and the heirs of the daughter, it was held that the remainder was not contingent nor conditional, but vested absolutely on testator’s death and passed by the deed. To the same effect see Harris v. Carpenter (1887), 109 Ind. 540, 10 N. E. 422; and Hoover v. Hoover (1888), 116 Ind. 498, 19 N. E. 468. In Myers v. Carney, supra, the will of Henry Carney was construed. By the second item of the will a certain share was given to Elizabeth Myers, a daughter. The fifth item provided that “If * * * either one of my living children shall die before the distribution of my estate as hereinbefore provided, his or her portion shall descend as provided by law where a person dies intestate.” Elizabeth Myers died after testator, but before the period of distribution. It was contended that by reason of such fact the share given her by the will divested and descended to the heirs of testator. It was held that the bequest vested in Elizabeth Myers on testator’s death unconditionally and descended to her heirs. Item three of the will of Moses Fowler devised the residue of his real estate to three devisees “subject to the following conditions, to wit: (a) In the event of the death of any of my said children without lawful issue living at the time of the death of such child, then the share of such deceased child shall vest in, and become the absolute. property in fee simple, in equal portions, of such of my said children as shall then be living, and the living descendants of such, if any, as may then be dead, the descendants of any deceased child taking, between them, the share which, if living, would have vested in their father or mother.” . In Fowler v. Duhme (1896), 143 Ind. 248, 42 N. E. 623, it was held that the said devisees took their respective shares in fee simple absolute on the death of the testator, and not. subject to defeat by subsequent death without issue surviving. See, also, Heilman v. Heilman (1891), 129 Ind. 59, 28 N. E. 310; Clark v. Thieme (1914), 181 Ind. 163, 103 N. E. 1068.

The cases cited discuss the rules of construction to which we have referred. These rules are not mere arbitrary formalities. They have been formulated to aid in the ascertainment of the testator’s true intent and prevent its subversion by ascribing a meaning to a word, perhaps carelessly used, which conflicts with the general intent of the testator. Aspey v. Lewis, supra. They are the product of the wisdom and experience of the ages in seeking amid ambiguous phrases, the intent of those engaged in the serious and solemn business of making a final disposition of property by will. When the will herei was made the testator knew that his son Francis might live as long as he actually did — 44 years. He knew that of the children then born, and that might' thereafter be born, no one might survive Francis, in which ease nothing would pass by item three to testator’s grandchildren or their descendants, if appellee’s theory be eorrreet. It is scarcely conceivable that the testator entertained such intent. It must be presumed that a rational, normal person in making such a will as this would have tender and just regard for dependent grandchildren who were manifestly objects of his bounty. Aspey v. Lewis, supra. Testator knew that appellee or appellant’s mother might die during the existence of the life tenancy, leaving dependent ones. Surely there is nothing in this will which shows the testator wanting in affection for his grandchildren. The fact that he created a life estate in Francis, with remainder to his young children, shows that testator looked into the future and sought to make provision for their possible day of need. On reading item three is it possible to conceive that testator intended that in the event that appellant’s mother should marry and afterwards die with dependent children surviving, that the right of such children to inherit a portion of this land should depend on the mere chance whether the mother died a day before or a day after the death of Francis? Myers v. Carney, supra, 386. In Rumsey v. Durham (1854), 5 Ind. 71, this court construed a will which devised property to testator’s widow during life, and provided that at her death it be sold and “equally divided among my children.” At the testator’s death he had eight children. At the widow’s death, the time fixed for distribution, only three survived. One of those who died left a child. It was contended by the three surviving children of testator that they alone were entitled to participate in the distribution. This court held otherwise and said: “But it is contended that his children alive at the termination of the life estate, are alone entitled as distributees. If this construction be the true one, then the grandchild, not being within the description of children, would have no share in the division of the estate. This could not have been the design of the testator. It is but fair to presume that he intended to give something absolutely to the persons designated as legatees; that he did not intend to disinherit any of his children, or their descendants. No doubt his mind would have revolted at the idea of his grandchildren being left, perhaps at a tender age, without the means of subsistence. To us it is clear that the actual intention of the testator was, that the right • to the distributive shares donated by the will should vest in his children immediately upon his decease.” In Fowler v. Duhme, supra, 275, this court said: “In other words, since a devise of an estate, defeasible upon the happening of a contingency, may be so easily expressed, and since such estates stand in disfavor before the law, the intention to create such an estate must be denied unless such intention has been made certain by the language of the whole will.”

On appellant’s theory titles vested conditionally and divested on the death of each of the five children of the first taker who died before Francis, until finally only appellee was left. The practical effect of such theory is to constitute the deceased children of Francis mere conduits for the transmission of a fee simple title that could vest absolutely only on the condition that some child should survive the life tenant. For practical purposes the title might , as well be in abeyance — a thing abhorred by the common law. Nothing in this will warrants the imputation to testator of an intent to make the fee simple title of this land a grand prize to the victor in his grandchildren’s race with death. The mere definition of a single word or the position of a pronoun ought not alone to pursuade a court that a testator’s purpose was devoid of reason, prudence and affection- when making a final disposition of his property among his grandchildren. Appellee relies especially on Corey v. Springer (1894), 138 Ind. 506, 37 N. E. 322. Whether the doctrines declared in that ease can be reconciled with those declared in the cases to which we have referred, we need not determine here because the provisions of this will are so different from those found in he Springer will that it could not be justly held that the Springer case should control 'here even if the soundness of the opinion were unquestioned. See Aldred v. Sylvester, ante 542, where Corey v. Spinger is overruled. We are of the opinion that on the death of Luke Walters the fee simple title to the land in question vested absolutely in appellee and appellant’s mother, subject to diminution to let in after-born children, and consequently the court erred in concluding that appellee is the sole owner of the land. Judgment reversed with instructions to restate the conclusion of law and. for further proceedings not in conflict with this opinion.