Gibson v. Seymour

Black, C.

On the 13th of November, 1879, Euth A. Burrow, then the wife of Joseph M. Burrow, with whom she resided at Logansport, in this State, executed her last will and testament, whereby she made dispositions of property as follows:

“First. I direct that all my just debts and funeral expenses shall be promptly paid, as soon as possible after my death.

“Second. I hereby bequeath and devise to my beloved husband, Joseph M. Burrow, all my property, both real and personal, of every description whatever, for and during his natural life.

“Thirdly. At the death of my said husband, should he outlive me, or as soon as may be after my death without the sacrifice of property, I desire that a suitable monument or monuments be put to all the graves; that they may be marked in an unostentatious manner: Harriet Farlow, who died January 30th, 1873; Mary Taintor, who died June 7th, 1873; Mahala Danforth, who died May 29th, 1879; Joseph M. Burrow and Ruth A. Burrow. The names may all be put on one monument if my executor and legatees are so disposed, and no use shall be made of my property or no income appropriated to personal use, until such monument or monuments shall be erected.

“Fourthly. If my husband survive me, I desire at his death that all I may own or be possessed of shall go to and become the property of my well beloved step-daughter, Harriet E. Gibson, now living in Lafayette, Indiana, subject to the provision of article third. If I survive my husband, all cr anything I may become possessed of through his death I desire shall be divided equally between my step-son, John F. Burrow, and step-daughters, Aletta J. Baker and Harriet E. Gibson. I promised $20 to the W. F. M. Society; I have only paid $5. This I consider a debt, and desire paid; also, desire that a locket worth at least $5 be purchased for my namesake, and my picture be put in it, Ruth A. Washburn, if I have not given it previous to my death.”

She appointed John F. Burrow as executor of said will. Her said husband died on the 17th of March, 1880, and she died on the 29th of July, 1880. Her said will was duly admitted to probate.

At the date of the execution of said will the testatrix was the owner in fee simple of certain real estate in Logansport, and she still owned it at her death. She was the second wife of her said husband, by whom she had no children.

This was an action for partition of said real estate, instituted by the appellee Charles E. Seymour, one of the heirs at law of said testatrix, against another heir at law and her stepchildren named in the will; and the question involved is, whether said real estate is the property of the appellant, said Harriet E. Gibson, or, as the court below decided, the property of the heirs at law of the testatrix.

By the second clause of the will the property in question was devised to the husband of the testatrix for his life. His death before that of the testatrix prevented the taking effect of this devise. By the second provision of the fourth clause she gave all the property of which she became possessed through his death to her step-children.

Other portions of the will directed the payment of her debts, the erection of a monument or monuments, the payment of what she had promised to the W. F. M. Society, and the purchase of a locket for her namesake; but the only disposition made of the real estate in question except to her husband for his life, was that contained in the first portion of the fourth clause, as follows: “ If my husband survive me, I desire, at his death, that all I may own or be possessed of shall go to and become the property of my beloved stepdaughter, Harriet E. Gibson, now living in Lafayette, Indiana, subject to the provision of article third.”

This language is plain; its meaning is obvious. We are not at liberty to qualify or control such language in a will by conjecture or doubt arising from extraneous facts.

The devise of the real estate in question to the appellant is contingent in form, and no transposition of the language of the will, which does not modify the meaning, can be made so as to render the devise other than a contingent one.

We may conjecture that the testatrix failed through inadvertence to express her intention as she would have done if her attention had been called by another person to the matter about which the parties to this suit are now through it contending. But courts can no more make a portion of a will than they can make an entire will.

Filed April 25, 1885.

We can not say that the testatrix by her will gave the real estate in question to the appellant in fee simple merely subject to the life-estate previously given to the husband of the testatrix. She plainly made the devise of this real estate to the appellant contingent upon an event which did not happen.

She made no expression of intention in regard to this property in the event that she should survive her husband; and thei’e is nothing left for us but to conclude, with the court below, that as to this property she died intestate.

Pee Curiam. — Upon the foregoing opinion, the judgment is affirmed, at the costs of the appellant.