Aneshaensel v. Twyman

• Decision Date: 13 October 1908
• Docket Number: No. 6,817.,6,817.
• Citation: 85 N.E. 788,42 Ind.App. 354
• Parties: ANESHAENSEL v. TWYMAN et al.
• Court: Indiana Appellate Court

42 Ind.App. 354

85 N.E. 788

ANESHAENSEL

v.TWYMAN et al.

No. 6,817.

Appellate Court of Indiana, Division No. 2.

Oct. 13, 1908.

Appeal from Circuit Court, Marion County; Henry C. Allen, Judge.

Action by Otto Aneshaensel against Katy, otherwise known as Daisy, Twyman and others.From a judgment for defendants, plaintiff appeals.Reversed, with directions.Donald Morris, C. O. Britton, and Howe & Batchelor, for appellant.Smith, Duncan, Hornbrook & Smith, O. U. Newman and Harding & Hovey, for appellees.

RABB, C. J.

Maggie Cunningham Twyman was, during her life, the owner of the premises that are in controversy in this case, together with other real estate in the city of Indianapolis.She died testate in August, 1904, leaving surviving her the appellees, Katy Twyman, James E. Twyman, and Harry Cunningham, and the appellant's wife, Annie, her children.Her will contained among other provisions the following: “Item 6.I give, bequeath and devise to my daughter, Annie Aneshaensel, my property known as Nos. 434 and 438 East Wabash street, described as follows: 50 feet off the south end of lot 4 in Coe's subdivision of square 41, in the city of Indianapolis: Provided, that in case of her death the same property shall be sold and proceeds divided equally between my other surviving heirs.”The will was duly probated, and no question arises as to its validity, and none of its other provisions affect the question to be decided here.The devisee, Annie Aneshaensel, survived the testator, and died intestate on the 22d day of July, 1906, leaving surviving her no children or their descendants, no mother or father, but leaving the appellant, Otto Aneshaensel, her husband, as her sole heir at law.The controversy arises over the construction of this clause of the will, the appellant claiming that it gave to Annie Aneshaensel a fee-simple title to the land; the appellees claiming that she took but a life estate, and that upon her death the property was to be sold and its proceeds divided among them.The question arises upon exceptions taken to the conclusions of law stated by the court upon a special finding of facts, and is the only question involved in the appeal.The terms of this clause of the will were sufficient to pass the fee to the devisee named, unless the proviso “in case of her death the same property shall be sold and proceeds divided equally between my other surviving heirs” manifests an intention, on the part of the testator, to limit the estate devised to the life of the devisee.Ross v. Ross, 135 Ind. 367, 35 N. E. 9;Morgan v. McNeeley, 126 Ind. 537, 26 N. E. 395;Mills v. Franklin, 128 Ind. 444, 28 N. E. 60;Korf v. Gerichs, 145 Ind. 134, 44 N. E. 24;Rogers v. Winklespleck, 143 Ind. 373, 42 N. E. 746;Lumpkin v. Rodgers, 155 Ind. 285, 58 N. E. 72;Logan, Adm'r, v. Sills, 28 Ind. App. 170, 62 N. E. 459.It is well understood that in construing wills the testator's intention must be the guide; but in the “ascertainment of that intention there are certain rules of construction that have become as thoroughly settled as that which requires that the intention, when ascertained, should be the true guide.”Fowler v. Duhme, 143 Ind. 258, 42 N. E. 623.Wills speak from the date of the death of the testator; the time at which they become effective, and all...