Aspy v. Lewis

• Decision Date: 31 January 1899
• Docket Number: 18,587
• Citation: 52 N.E. 756,152 Ind. 493
• Parties: Aspy et al. v. Lewis et al
• Court: Indiana Supreme Court

52 N.E. 756

152 Ind. 493

Aspy et al. v. Lewis et al

No. 18,587

Supreme Court of Indiana

January 31, 1899

Rehearing Denied April 25, 1899.

From the Bartholomew Circuit Court.

Reversed.

W. W Lambert, Ralph H. Spaugh, M. D. Emig, W. W. Herrod and W. P Herrod, for appellants.

G. W. Cooper and C. B. Cooper, for appellees.

OPINION

Hadley, J.

The complaint shows that the will of Jonas Reed was duly admitted to probate in Bartholomew county on the 10th day of July, 1843; the part thereof material to a decision of this case being in the words following: "And I also direct that the real estate of which I die seized or possessed of be disposed of in the following manner, to wit: I bequeath to my beloved wife, Elizabeth, all my real estate so long as she remains a widow, namely: The east half of the southwest quarter of section eighteen, in town ten north, of range seven east, containing eighty acres, more or less, being in the Indianapolis district; together with all the rights, privileges, and appurtenances thereto belonging. And I direct further that the above estate that is bequeathed to my wife shall be in the full possession of my only daughter, Maria Louisa, at the death or marriage of my wife, provided she shall be living; and if she is not living, at the death or marriage of my wife then the estate to go to the use of my brothers and sisters or their heirs."

The testator left surviving him his wife, Elizabeth Reed, and his daughter, Maria Louisa Reed, and several brothers and sisters. His wife and widow, Elizabeth, never remarried, and died in 1897. His daughter, Maria Louisa, intermarried with John Aspy, had children, and died before her mother, Elizabeth Reed.

This suit is for partition and to quiet title. Appellants' separate demurrers were overruled to the complaint, which presents the only question for decision. The appellants (defendants below) are the widower and children of Maria Louisa, deceased, and claim title through her by virtue of the will of Jonas Reed, on the theory that Maria Louisa took a fee simple; and appellees, who are the brothers and sisters, and their descendants, of Jonas Reed, claim title through the will by virtue of the fact that Maria Louisa, the daughter, died before her mother, and on the theory that Maria Louisa took only a contingent remainder under the will. The real question, therefore, raised by the assignments of error is, in whom is the title, the heirs of Maria Louisa, the daughter, appellants herein, or in the brothers and sisters and their heirs, appellees herein?

It has been said that the intent of the testator must be the polar star in the construction of a will. Among the rules of construction is that which springs from our human nature, when engaged in the serious and solemn business of making a final disposition of property, and when natural affection for wife and children has the most impartial and sincerest sway. In such moments it is presumed that the testator will have a just and tender regard for those dependent ones, who are the natural recipients of his bounty, and whose future comfort and happiness have the promptings of his affection. Hence it is that no construction of a will is to be accepted that disinherits a child or direct descendant in favor of collateral kindred, unless the language of the will is such as clearly to indicate such intention. In a recent well considered case the court said: "An heir cannot be disinherited unless the intention to disinherit be expressed, or is to be clearly and necessarily implied. When one construction of an ambiguous will leads to a disinheritance of the heir, and another favorable to the heir, the latter construction must be adopted." Crew v. Dixon, 129 Ind. 85, 27 N.E. 728.

Another rule of construction is that the law looks with disfavor upon the postponement of estates, and the intent to postpone must be clear and manifest, and must not arise by mere inference or construction. "And 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." Doe v. Considine, 73 U.S. 458, 6 Wall. 458 at 458-475, 18 L.Ed. 869; Bruce v. Bissell, 119 Ind. 525 at 525-530, 22 N.E. 4; Heilman v. Heilman, 129 Ind. 59-64, 28 N.E. 310. "It is a rule of law that estates shall be held to vest at the earliest possible period, unless there be a clear manifestation of the intention of the testator to the contrary." Doe v. Considine, supra; Heilman v. Heilman, supra; Amos v. Amos, 117 Ind. 19 at 19-37, 19 N.E. 539; Harris v. Carpenter, 109 Ind. 540, 10 N.E. 422.

Another principle of construction correlative to the one just stated, is that words of survivorship must be held to relate to the death of the testator, rather than to the death of the first taker, if the words of the will are capable of such construction. This doctrine is in aid of a vested, as against a contingent, remainder.

In the case of Harris v. Carpenter, 109 Ind. 540, 10 N.E. 422, the will, so far as it relates to the question here presented, is as follows: "Item 2. I further give and devise to her, (widow), in lieu of her interest in my lands, the following part and parcel of the farm * * * on which we now reside, bounded and described as follows, to wit: * * * She my said wife, to have the same after my death for and during the period of her natural life; and at her death the same shall be the property of and pass to my daughter, Laura Carpenter, * * * in fee; but if she, said Laura, be not living, then to her heirs forever." Concerning which the court said, "Construing the will before us in the light of the foregoing authorities, we have reached the conclusion that the survivorship provided for in the last clause of the second item had reference to the time of the death of the testator, and that upon his death Mrs. Carpenter became seized of a vested remainder in fee in the land devised by that item of the will."

In Hoover v. Hoover, 116 Ind. 498, 19 N.E 468, the will under consideration provided that certain lands should go to the widow of testator "for and during her natural life, and, at her death, said real estate...