Aldred v. Sylvester

• Decision Date: 15 March 1916
• Docket Number: No. 22933.,22933.
• Citation: 111 N.E. 914,184 Ind. 542
• Parties: ALDRED v. SYLVESTER et al.
• Court: Indiana Supreme Court

184 Ind. 542

111 N.E. 914

ALDRED

v.SYLVESTER et al.

No. 22933.

Supreme Court of Indiana.

March 15, 1916.

Appeal from Circuit Court, Hamilton County; Meade Vestal, Judge.

Suit by Minda Aldred against Elizabeth Sylvester and others. From a judgment for defendants, plaintiff appeals. Transferred from Appellate Court under section 1405, Burns' Ann. St. 1914. Reversed, with instructions.Joseph A. Roberts, Gentry & Cloe, and Shirts & Fertig, all of Noblesville, for appellant. Ralph K. Kane and Thos. E. Kane, both of Noblesville, for appellees.

MORRIS, C. J.

Suit by appellant to quiet title. The complaint was originally in four paragraphs, but the first and second were dismissed. Demurrers were sustained to the third and fourth, and these rulings are presented here for review.

By the third paragraph it appears that on May 14, 1872, John Castor owned the 80-acre tract of land in controversy, and other lands. His nearest kindred were his sister, Lorinda Smith, and Thomas and Conrad Castor, his brothers. On said day he made his will, by the first item of which he devised to Emily Castor the fee simple of a 40-acre tract of land. By the second item he devised a life estate, only, in the 80-acre tract in question to Margaret McDaniel.

[1] Item 3, relating to the same land, reads as follows:

“Item III. I further order and direct, that at the death of said Margaret McDaniel (above named) that the said 80 acres tract of land above described be sold at private or public sale as may be most advisable, and for the best price that can be procured for the same, and that the proceeds of such sale be equally divided among my brothers and sister to wit: Lorinda Smith (wife of Thomas Smith), Thomas Castor and Conrad Castor. But if any or either of said brothers and sisters last named shall die previous to the termination of such life estate, and the sale of said 80 acre tract, then in that case the descendants of such deceased devisees are to have the same share as their ancestors would have had if then living.”

Item 5 reads as follows:

“Item V. The balance and residue of my property *** I give and devise to the said Lorinda Smith, Thomas Castor and Conrad Castor (or their descendants), to be equally divided between them share and share alike.”

The testator died in 1880, the owner of the land in question. When he died, his sister and brothers were living. Margaret McDaniel still survives. Lorinda Smith died intestate previous to 1891, leaving children and heirs, who were made defendants in this action and who were defaulted. Thomas Castor also died intestate previous to 1891, leaving children and heirs, who were parties to this suit, and defaulted.

In August, 1891, Margaret McDaniel, life tenant, Conrad Castor, and the heirs of Lorinda Smith and Thomas Castor executed their warranty deeds to the 80-acre tract to named grantees, who at once took possession of the land and held the same, and afterwards conveyed it to appellant, who has since been in possession under claim of absolute ownership. Conrad Castor, after the execution of his deeds, died intestate, leaving appellees as his descendants and heirs at law.

If, as appellant contends, Conrad Castor took a fee simple absolute, which vested on testator's death, the court erred in sustaining the demurrer to the third paragraph. Appellees contend that at the death of testator the fee vested in Conrad Castor and his brother and sister, but that such fee was a base or determinable one that divested as to each on his death during the life of Margaret McDaniel; that on the death of Conrad Castor his title determined, and his descendants, appellees here, on the happening of the contingency took the absolute fee by executory devise, subject only to the life estate of Margaret McDaniel. Appellees further say that it was not intended by the testator that the title to the 80-acre tract should be affected by item 5 containing the residuary provision. In support of their theory appellees rely especially on Jones v. Miller, 13 Ind. 337,Smith v. Hunter, 23 Ind. 580, and Corey v. Springer, 138 Ind. 506, 37 N. E. 322.

[2] In all cases where, from a consideration of the entire will, the testator's intention clearly appears, it must be given effect. Courts are invested with no power to make or alter wills. But where the intent is obscured by ambiguous phraseology, it is the duty of courts to seek it in the light of recognized rules of construction. In the discussion of this subject, a distinguished author said:

“It is necessary therefore to remind the reader that the language of courts, when they speak of the intention as the governing principle, sometimes calling it ‘the law’ of the instrument, sometimes the ‘pole star,’ sometimes the ‘sovereign guide,’ must always be understood with this important limitation-that here, as in other instances, the judges submit to be bound by precedents and authorities in point, and endeavor, as we have seen, to collect the intention upon grounds of a judicial nature, as distinguished from arbitrary occasional conjecture.” 3 Jarman on Wills, 700 (5th Am. from 4th London Ed.).

[3] It often happens that the testator's real intent is so clouded by ambiguous words or phrases as to render its discovery a mere matter of conjecture. In such cases the declared results must necessarily vary with the elasticity of imagination of the various judges that may be concerned in the determination, if only the language of the will may be considered. Viewed, however, in the light of rules evolved from the observation and experience of centuries, it may be asserted with confidence that the real intent is more apt to be revealed. But if this is not true, the fact remains that in Indiana the power to dispose of property by will is a creature of our statute, readopted in 1852. Section 3112, Burns 1914. The same Legislature readopted the common law as a part of our system of jurisprudence. Section 236, Burns 1914. Certain rules in the construction of wills were recognized by the common law. Consequently the testator must be presumed to know that obscure phrases may be subjected to the test of well-recognized rules of construction. If, because of his ignorance or heedlessness of the law, his real designs are thwarted, those actually intended as the objects of his bounty have no more just cause of complaint than do those who suffer in other matters by ignorance or disregard of recognized legal rules. Of most importance, however, is the substitution for doubt of certainty in real estate titles. It is the policy of the law to discourage rather than promote avoidable litigation, and resort to well-known rules of construction tends to avoid the delay, and expense of appeals to courts of last resort to determine the status of real estate titles. 3 Jarman on Wills, 701.

A consideration of cases involving the interpretation of wills shows that the most frequent questions presented arise from ambiguous phraseology in regard to the time of vesting of ulterior interests where a particular estate is created-whether the ulterior interest vests at testator's death, or at some subsequent time. The courts recognize the fact from common experience that testators are generally inclined to have in mind the time when the devisee of the ulterior interest will enjoy the estate devised, in possession, and overlook the propriety of fixing with certainty the time of vesting of such estate in the devisee. Taylor v. Stephens (1905) 165 Ind. 200, 203, 74 N. E. 980; 2 Jarman on Wills, 407.

In discussing this subject, it was said in an opinion delivered by Mr. Justice Gray:

“For many reasons, not the least of which are that testators usually have in mind the actual enjoyment rather than the technical ownership of their property, and that sound policy as well as practical convenience requires that titles should be vested at the earliest period, it has long been a settled rule of construction in the courts of England and America that estates, legal or equitable, given by will, should always be regarded as vesting immediately, unless the testator has by very clear words manifested an intention that they should be contingent upon a future event.” McArthur v. Scott (1884) 113 U. S. 340, 378, 5 Sup. Ct. 652, 28 L. Ed. 1015.

In Doe v. Considine (1867) 6 Wall. 458, 475, 18 L. Ed. 869, in an opinion delivered by Mr. Justice Swayne, it was held:

“ Adverbs of time-as where, there, after, from, etc.-in a devise of a remainder, are construed to relate merely to the time of the enjoyment of the estate, and not the time of the vesting in interest.”

[4][5] This court has with practical uniformity and consistency recognized the existence of the following rules where particular and future estates are created: (1) The law so favors the vesting of estates at the earliest opportunity and in so averse to a postponement thereof that they will be deemed as vesting at the earliest possible period, in the absence of a clear manifestation of the contrary intention; (2) words of postponement are presumed to relate to the beginning of the enjoyment of the estate, rather than to its vesting; (3) words of survivorship are presumed to relate to the death of testator, rather than that of the first taker, if they are fairly capable of such interpretation. Aspey v. Lewis (1899) 152 Ind. 493, 52 N. E. 756; Myers v. Carney (1908) 171 Ind. 379, 86 N. E. 400;Fowler v. Duhme, 143 Ind. 248, 42 N. E. 623;Campbell v. Bradford (1906) 166 Ind. 451, 77 N. E. 849; Taylor v. Stephens, supra; Moores v. Hare (1896) 144 Ind. 573, 43 N. E. 870;Tindall v. Miller (1896) 143 Ind. 337, 41 N. E. 535;Borgner v. Brown (1893) 133 Ind. 391, 33 N. E. 92;Wright v. Charley (1891) 129 Ind. 257, 28 N. E. 706;Heilman v. Heilman (1891) 129 Ind. 59, 28 N. E. 310;Bruce v. Bissel (1889) 119 Ind. 525, 22 N. E. 4, 12 Am. St. Rep. 436;Amos v. Amos (1889) 117 Ind. 19, 19 N. E. 539;Hoover v. Hoover (1889) 116 Ind. 498, 19 N. E. 468;Harris v. Carpenter (1887) 109 Ind. 540, ...