Alsman v. Walters

• Decision Date: 11 March 1913
• Docket Number: No. 7,773.,7,773.
• Citation: 101 N.E. 117
• Parties: ALSMAN v. WALTERS.
• Court: Indiana Appellate Court

101 N.E. 117

ALSMAN

v.WALTERS.

No. 7,773.

Appellate Court of Indiana.

March 11, 1913.

Appeal from Circuit Court, Sullivan County; Chas. E. Henderson, Judge.

Action by William R. Walters against Hosea W. Alsman and others. Judgment for plaintiff, and the defendant named appeals. Affirmed.W. H. Bridwell, of Sullivan, for appellant. Charles D. Hunt, Gilbert W. Gambill, and John W. Lindley, all of Sullivan, for appellee.

HOTTEL, J.

This action grew out of a controversy over the ownership of the W. 1/2 of the N. E. 1/4 of section 30, township 7 N., range 8 W., containing 80 acres, situate in Sullivan county, Ind.

On the 24th day of March, 1865, Luke Walters died testate in said county, the owner of said real estate.

The appellant and appellee are each basing their respective claims to the interest they assert in said real estate on the third item of the will of said deceased, which 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 seven of range west, containing eighty acres.”

Francis M. Walters, to whom the life estate in said real estate was given by said item of said will, survived his father, Luke, and died June 29, 1909. At the time of his father's death said Francis M. had two children living, to wit, William R. Walters, appellee, and a daughter, Nancy Walters, who afterward married Luther Alsman, and had born to her as the result of said marriage Hosea W. Alsman, the appellant. Said Nancy died intestate before the death of her father, Francis M., and left surviving her as her only child and heir the appellant. Francis M. had but one child, who survived him, viz., the appellee; but he had other children born to him after the death of his father, the testator, and some of these children died leaving children and heirs surviving them, who also survived Francis M., and were made parties to this suit.

The complaint is in four paragraphs, and was filed by the appellee. In the first paragraph it is alleged that the plaintiff is the owner of the land in question; that the defendants hold possession without right; and that during their possession they committed waste. Judgment for possession and damages is demanded. The second, third, and fourth paragraphs each allege ownership of the land in the plaintiff and the adverse claim of title by all the defendants, and each paragraph demands that appellee's title to the real estate described be quieted. The paragraphs differ in this: The second alleges that appellee is the owner, the third that he is the legal owner, and the fourth that he is the equitable owner, of the real estate in controversy.

Four of the defendants to the complaint filed an answer, disclaiming any interest in the land, and all other defendants to the complaint, except minors and this appellant, were defaulted. A guardian ad litem was appointed for the minor defendants, who filed the usual answer in denial.

The appellant, Hosea Alsman, filed an answer in two paragraphs, the first a general denial, and the second alleged that appellant, appellee, and other parties therein named are the owners of the land in controversy as tenants in common. The appellee filed a reply in general denial to this second paragraph of answer.

Appellant, Alsman, also filed a cross-complaint in two paragraphs. The first alleges that the appellant and the appellees are the owners, as tenants in common, of the real estate described in the complaint and cross-complaint, demands partition between them, and that his title be quieted as against all other defendants to the cross-complaint. The second paragraph alleges that the appellant, the appellee, and the other parties therein named are the owners of said real estate as tenants in common, and prays for partition of the land between the parties.

The appellee filed an answer of general denial to the cross-complaint, as did one Susanne Walters, who had been made party thereto. The other defendants to the cross-complaint were defaulted.

Upon these issues the case was tried, and the court, at the request of the parties, made a special finding of facts and stated its conclusion of law thereon, which conclusion is, in substance, that the law is with the plaintiff, and that he is the owner of the real estate in question and entitled to have his title thereto quieted as against all defendants. Appellant alone appeals, and the exception to said conclusion of law is the only question presented and relied on for reversal. The question presented, therefore, turns solely on the construction to be given to said item 3 of said will.

Appellant contends that said item 3 of the will of Luke Walters created two estates in the land in question, viz., a life estate, which, upon the death of the testator, passed to his son, Francis M., and a vested remainder in fee simple, which, upon the death of the testator, passed to Nancy Walters, appellant's mother, and appellee, William R. Walters, they being the only children of Francis M. then in being; and that appellant, the only heir of his deceased mother, Nancy Walters, takes her interest in said real estate.

Certain general principles or rules of law, long recognized and well supported by the decisions of the Supreme and Appellate Courts of this state as being of controlling importance and influence in the construction of wills generally, are relied on by appellant as supporting this contention. These rules are as follows:

[1] (1) In the absence of a contrary intent, a will speaks from the date of the death of the testator. Clore et al. v. Smith et al., 45 Ind. App. 340, 90 N. E. 917;Aneshaensel v. Twyman, 42 Ind. App. 354, 85 N. E. 788;Burton v. Carnahan, 38 Ind. App. 612, 78 N. E. 682;Campbell v. Bradford, 166 Ind. 451, 77 N. E. 849;Taylor v. Stephens, 165 Ind. 200, 74 N. E. 980;Aspy v. Lewis, 152 Ind. 493, 52 N. E. 756;Moores v. Hare et al., 144 Ind. 573, 43 N. E. 870;Fowler v. Duhme et al., 143 Ind. 248, 42 N. E. 623;Tindall v. Miller et al., 143 Ind. 337, 41 N. E. 535;Heilman et al. v. Heilman, 129 Ind. 59, 28 N. E. 310;Bruce et al. v. Bissell, 119 Ind. 525, 22 N. E. 4, 12 Am. St. Rep. 436;Hoover et al. v. Hoover, 116 Ind. 498, 19 N. E. 468;Harris et al. v. Carpenter et al., 109 Ind. 540, 10 N. E. 422;Livington v. Greene, 52 N. Y. 118;Moore v. Lyons, 25 Wend. (N. Y.) 119.

[2] (2) “The law favors the vesting of remainders at the earliest possible moment,” and to accomplish such result “words of survivorship in a will are construed as referring to the death of the testator in all cases where the words of the instrument are not such as clearly show they refer to a subsequent date” (our italics); and words postponing such estate are presumed to relate to the beginning of its enjoyment rather than to its vesting, unless a contrary intent of the testator appears manifest and certain from the language used in his will. Clore et al. v. Smith, supra; Myers v. Carney, 171 Ind. 379, 86 N. E. 400; Campbell v. Bradford, supra; Taylor v. Stephens, supra; Burton v. Carnahan, supra; Nelson v. Nelson, 36 Ind. App. 331, 75 N. E. 679; Aspy v. Lewis, supra; Gingrich et al. v. Gingrich, 146 Ind. 227, 45 N. E. 101; Moores v. Hare, supra; Fowler v. Duhme, supra; Tindall v. Miller, supra; Wright v. Charley, 129 Ind. 257, 28 N. E. 706; Heilman v. Heilman, supra; Borgner v. Brown, 133 Ind. 391, 33 N. E. 92;Boling, etc., v. Miller et al., 133 Ind. 602, 33 N. E. 354; Bruce v. Bissell, supra; Amos v. Amos, 117 Ind. 19, 19 N. E. 539;Id., 117 Ind. 37, 19 N. E. 543; Hoover v. Hoover, supra; Davidson v. Bates, 111 Ind. 391, 12 N. E. 687; Harris v. Carpenter, supra; Bailey v. Sanger, 108 Ind. 264, 9 N. E. 159;Davidson v. Koehler, 76 Ind. 398;Curry v. Bratney, 29 Ind. 195;Allen v. Mayfield, 20 Ind. 293;Miller v. Keegan, 14 Ind. 502;Petro v. Cassidy, 13 Ind. 289.

[3] (3) “The right and capacity of the remainderman to take possession of the estate, if the possession were to become vacant, and the certainty that the event upon which the vacancy depends must happen some time, and not the certainty that it will happen in the lifetime of the remainderman, determines whether or not the estate is vested or contingent.” Clore et al. v. Smith, supra; Nelson v. Nelson, supra; Tindall v. Miller, supra; Heilman et al. v. Heilman, supra; Bruce et al. v. Bissell, supra; Hoover et al. v. Hoover, supra; Croxal v. Shererd, 5 Wall. 268, 18 L. Ed. 572;Harris et al. v. Carpenter et al., 109 Ind. 540, 10 N. E. 422.

[4] In construing a will partial intestacy is to be avoided, if possible. Myers v. Carney, supra; Murphey v. Brown, 159 Ind. 106, 62 N. E. 275;Korf v. Gerichs, 145 Ind. 134, 44 N. E. 24;Borgner v. Brown et al., 133 Ind. 391, 33 N. E. 92; Boling, by Next Friend, v. Miller et al., supra; Mills v. Franklin, 128 Ind. 444, 28 N. E. 60;Morgan v. McNeeley, 126 Ind. 537, 26 N. E. 395;Roy v. Rowe, 90 Ind. 54;Spurgeon v. Scheible, 43 Ind. 216;Cate v. Cranor, 30 Ind. 292.

[5] As a general rule, the law will not construe a limitation in a will into an executory devise, when it can take effect as a remainder, nor a remainder to be contingent, when it can be taken to be vested. Aspy v. Lewis, supra; Doe v. Considine, 6 Wall. 458-475, 18 L. Ed. 869; Bruce v. Bissell, supra; Heilman v. Heilman, supra; Amos et al. v. Amos et al., 117 Ind. 19-24, 19 N. E. 539.

These rules are so well known that citation of authority in their support was unnecessary; but it must be admitted that in their application to particular cases some confusion, if not inconsistency and contradiction, appears in the decided cases. For this reason, and, with a view of determining whether such rules shall have controlling influence in the case under consideration, we have cited numerous cases which announce the rules and discuss their application to the particular case. In...