Hackleman v. Hackleman , 88 Ind. App. 204 ( 1925 )

ON PETITION FOR REHEARING. The case of Burrell v. Jean (1925), 196 Ind. 187,146 N.E. 754, to which our attention has been called by appellees in their petition for rehearing, is clearly distinguishable from the case at bar. The language used in the Hackleman will is:

"I give and bequeath unto all my children that may be living at the time of the death of my wife, Nancy, all of my property that may be remaining, to be divided in equal parts among them."

The language in the will in the Burrell case:

"And after the death of my said daughter, I give and devise said lands to her children, and if she dies leaving no child or descendant of any child surviving her, said real estate shall be equally divided among my heirs."

It is to be observed that in the will in the latter case the devise over is to a class — to the first taker's children some of whom were living at the time of the death of the testator. In the Hackleman will, the devise over is not to testator's children as a class, but to such of the testator's children as should be living at the time of the death of the life tenant. In the will in the Burrell case, the devise of the remainder is not to the children who should survive, but to the "children" of the life tenant. There is no contingency attached to the taking, and, of course, at the death of the testator, the remainder vested absolutely. To become a remainderman under the Hackleman will, the child of the testator must have survived the life tenant. Until the death of Hackleman's wife, it was uncertain who would survive her, and in that lay the contingency on which rested the vesting of the remainder.

The form of devise found in the will in the Burrell case has many times been construed by the courts, and almost universally has been held to vest the fee in the members of the class, subject to open and let in afterborn members of the class; and subject also to having the share of a member of the class increased according to the laws of descent, by the death of a member of the class. Crawley v. Kendrick (1904), 122 Ga. 183, 50 S.W. 41, 2 Ann. Cas. 643, and note.

It is equally well-settled that where the devise is for life, with remainder over to such of one's children as may be living at the time of the death of the life tenant, the remainder is contingent, and does not vest until it can be determined who will survive. In addition to authorities cited in principal opinion, see 23 R.C.L. 543, and cases there cited. The author of that valuable text correctly states the law to be: "Where the gift of a remainder is accompanied by words of survivorship, as where the remainder is to the testator's children or the survivor or survivors of them, the estate will go to those surviving at the time fixed for the distribution or vesting in possession, unless a different intention is disclosed by the will. In the case of a bequest to one during life, and after his death to the testator's living children, the words of survivorship refer to the death of the tenant for life, or the time of distribution; and the children living at that period will take to the exclusion of the representatives of such as have died since the death of the testator. Where the devise is to the testator's wife for life and at her death to such of his children as survive her or shall then be living the benefit does not purport to be conferred on the children as children or individuals named, but as survivors, which indicates that an immediate vesting is not intended."

Again, the language used by the testator in the will in the Burrell case, as held by the Supreme Court, is ambiguous, and calls for the application of the rules of construction. The 3. court, in discussing the question as to how the will should be construed well says: "The various contentions here submitted by counsel for each of the parties related to that part of the same item, where the testator disposed of the fee. The several conclusions drawn, based upon different meanings, attributed to the wording of the will, are exceedingly persuasive that a correct result in the matter may be reached only by a resort to the established rules for the construction of ambiguous wills."

The item of the Hackleman will now under consideration is not ambiguous. No one contends that it is. There are not here "various contentions" as to its meaning. There is not the slightest doubt as to the meaning of the item. The decision in the Burrell case is in accord with the weight of authority; but the principles which rule in that case have no application in the case under consideration.

Rehearing denied.