Amos v. Amos
| Decision Date | 23 January 1889 |
| Docket Number | 13,166 |
| Citation | 19 N.E. 539,117 Ind. 19 |
| Parties | Amos et al. v. Amos et al |
| Court | Indiana Supreme Court |
From the Rush Circuit Court.
Judgment affirmed.
B. L Smith, W. J. Henley, R. Hill and F. Winter, for appellants.
J. Q Thomas, J. J. Spann, G. C. Clark, D. S. Morgan, J. A. New and E. W. Felt, for appellees.
On the 24th day of August, 1877, Joseph J. Amos, Sr., and his wife executed a deed to Liford K. Amos, which, omitting some of the formal parts and the description of the land, reads thus: "This indenture witnesseth that Joseph J. Amos and Emily H. Amos, his wife, of Rush county and State of Indiana, convey and warrant to Liford K. Amos during the term of his natural life, and at his death to his children begotten by him in wedlock the fee simple title to the real estate herein described, and in the event of the said Liford K. Amos dying without children begotten in wedlock, then the fee simple to said real estate is conveyed to my grandchildren living at the time of the said Liford K.'s death, and the children of such of my grandchildren as may die after the death of said Liford K., if any there should be, such children to take such interest in said real estate as their father or mother would have been entitled to if living." The deed also contains these provisions: "This deed is made in consideration of love and affection and in consonance with my last will and testament bearing even date herewith, and for the purpose of effectuating and carrying out the intention therein expressed, and should the court having probate jurisdiction have occasion to construe this deed, it shall be done in the light of the several clauses and provisions of said will."
At the time the deed was executed, Joseph J. Amos executed similar deeds to Mezzina J. Amos, Joseph J. Amos, Jr., Willard K. Amos, Joseph J. Caldwell and Claudine Caldwell, all of whom were the brothers and sisters of Liford K. Amos. Under the deed executed to him Liford took possession of the land. The grantor in that deed, as part of the transaction in which it and the similar deeds were executed, caused to be drafted an instrument in form a will, wherein were written provisions respecting the disposition of his property after death, and also this provision: "I hereby devise and bequeath to my grandson, Liford K. Amos, during his natural life, and at his death to his children begotten by him the fee simple title to the land, and in the event of the said Liford K. dying without issue begotten by him in wedlock, then the fee simple title shall go to my grandchildren then living at the time of said Liford K.'s death, and the children of such grandchildren as may die after this date and prior to the death of Liford K., if any there should be, such children to take such interest in said real estate as their father or mother would have been entitled to if living." This instrument refers to the deeds executed by Joseph J. Amos, Sr., to his grandchildren, and declares that they shall be delivered after his death and become absolute immediately. There is in the instrument the further declaration that the property mentioned in it and in the deeds shall vest in such persons only as are of the blood of the author of the instrument.
Liford K. Amos continued in possession of the land until his death, which occurred in April, 1884. He left no children but left a widow. A child was born to him and his wife during his lifetime. His grandfather, Joseph J. Amos, Sr., is still living and is one of the appellees.
The instrument written at the time of the execution of the deeds is, of course, not effective as a will, since a will is voiceless and powerless during the lifetime of its author. But, while the instrument is not a will, it is, nevertheless, not to be disregarded in the work of construing the deed. The general rule is, that contemporaneous written instruments are to be taken as forming one contract. Possibly there might be some doubt as to whether this rule could apply where one of the instruments was inoperative for the purpose for which it was intended, and there was no reference in the principal and effective instrument to the collateral one; but, however this may be, the rule must apply where, as here, there is a direct reference to the collateral instrument, accompanied by a positive direction that it shall be taken in connection with the principal instrument.
An old rule of the law is, that "Words to which reference is made in an instrument have the same effect and operation as if they were inserted in the clause referring to them." Broom Leg. Max. 673. It is obvious, therefore, that the instrument drafted as a will must, notwithstanding its lack of life as a will, be taken in connection with the deeds. The rights of the parties, consequently, depend upon the effect to be ascribed to both instruments considered together.
Liford K. Amos was, of course, bound to know the contents and legal effect of the instruments which gave him title. He and his heirs are chargeable with knowledge of the provisions of the deed, and of the will which entered into the deed by means of the reference made to it by the deed. So, too, were all those who claimed title through him bound to know the legal effect of the deed, considered in connection with the instrument purporting to be a will. They had, therefore, notice of the consideration, the character and the effect of the deed, with all its incidents.
The central question is, what is the contingency designated in the deed as that upon which the remainder shall take effect? Is it simply the birth of a child to Liford K. Amos, or is it the birth of a child and its survival? The appellees say "We maintain that the deed executed by Joseph J. Amos, Sr., on the 24th day of April, 1882, conveyed to Liford K. Amos a life estate in the land therein and a remainder in fee to such child or children as might be born unto him in wedlock after that date." If the assumption contained in this proposition is valid, then the conclusion that...
To continue reading
Request your trial