Borgner v. Brown

• Decision Date: 27 January 1893
• Docket Number: 16,197
• Citation: 33 N.E. 92,133 Ind. 391
• Parties: Borgner v. Brown et al
• Court: Indiana Supreme Court

33 N.E. 92

133 Ind. 391

Borgner v. Brown et al

No. 16,197

Supreme Court of Indiana

January 27, 1893

The judgment is reversed, and the cause is remanded for further proceedings in accordance with this opinion.

T. J Kane and T. P. Davis, for appellant.

R Graham, R. N. Lamb and R. Hill, for appellees.

OPINION

Hackney, J.

This was an action by the appellant against the appellees, to quiet the title to a tract of land in Hamilton county consisting of one hundred and thirty-one acres. The complaint alleges an unfounded adverse claim by the appellees, constituting a cloud upon the title. The title asserted by the appellant, in her complaint, involves the construction of the following testamentary provision in the will of Isaac Helms: "I give and devise to my beloved wife, in lieu of her interest in my lands, the farm on which we now reside (describing it), during her natural life. * * * At the death of my said wife, the real estate aforesaid I give and devise to my son James Helms and his heirs. If my said son should die without issue, then the above-named real estate one-third to descend to his wife, if living, and the remainder to go to my children."

The complaint further alleges the death of Isaac Helms, and the admission to probate of his will, in the year 1864; that said James Helms died before the death of the testator, leaving surviving him, Sarah A. Helms, his widow, without issue; that said Sarah A. Helms thereafter intermarried with the appellee, Orin H. Brown, and subsequently, in 1885, died, leaving said Orin, and the other appellees, the issue of said marriage with said Orin H. Brown; that the widow of said Isaac Helms did not depart this life until in 1890, and that "the children, heirs and devisees of said Isaac Helms sold and conveyed said real estate to the plaintiff."

To this complaint the appellees answered, first, jointly, the general denial, and secondly, as follows:

"Secondly. The defendants, Myron C. Brown, Georgia E. Brown, Mary A. Brown and Simeon Sharp Brown, for a further answer to the complaint herein, and for a cross-complaint against the plaintiff, say that they are the owners jointly of the undivided one-third of the lands in the complaint mentioned and described, and they ask that, on the final hearing of this cause, partition be awarded them, and their said interest be set off to them jointly."

Upon the trial the court found for the appellees, and, except Orin H. Brown, decreed that partition be made, setting off to them the one-third part in value of said lands. The appellant, by her several motions for a new trial, in arrest of judgment, and to modify the judgment, has reserved these questions:

First. Did Sarah A. Brown, widow of James Helms, take the one-third interest in said lands, under the provision of the will of Isaac Helms, above quoted?

Second. If said Sarah received such interest in said lands, is her second husband, Orin H. Brown, as her widower, entitled to share therein?

Third. Is the cross-complaint sufficient, as a pleading, to support the decree rendered by the lower court?

We will pass upon these questions in the order in which they are here stated.

The appellant insists that the devise was to James upon the condition that he should survive his mother; that no estate passed to Sarah A., absolutely or conditionally; that by reason of the death of James in the lifetime of the testator, the devise to him lapsed, and no estate, absolute or conditional, ever vested in James, which, under the word descend, as used in the will, could pass to said Sarah A. as the widow of James.

We repeat the language of the will, so far as it is necessary to the questions in review: "I devise to my wife the farm during her natural life; at the death of my wife, the real estate aforesaid I devise to my son James. If James should die without issue, the above real estate to descend to his wife, if living, and the remainder to go to my children."

It is conceded that this clause of the will gave to the widow of the testator Isaac a life estate in the whole tract. No contingency is expressed or implied giving her a greater or less interest.

There is nothing in the language of the clause from which we can find that the testator intended to postpone or suspend the vesting of the fee; and, as held by this court in a number of cases, the law favors the vesting of estates, and will construe the terms of a will as creating a vested estate, if possible. Heilman v. Heilman, 129 Ind. 59, 28 N.E. 310; Harris v. Carpenter, 109 Ind. 540, 10 N.E. 422; and in Amos v. Amos, 117 Ind. 37, 19 N.E. 543, it is said:

"We affirm, as an established principle, that the law not only favors the vesting of remainders, but it also presumes that words postponing the estate relate to the beginning of the enjoyment of the remainder and not to the vesting of that estate. Davidson v. Koehler, 76 Ind. 398; Davidson v. Bates, 111 Ind. 391, 12 N.E. 687; Davidson v. Hutchins, 112 Ind. 322, 13 N.E. 106." See, also, Hoover v. Hoover, 116 Ind. 498, 19 N.E. 468; Bruce v. Bissell, 119 Ind. 525, 22 N.E. 4, and Wright v. Charley, 129 Ind. 257, 28 N.E. 706.

In the case of Hielman v. Hielman, supra, the following is quoted with approval, from Bruce v. Bissell, supra:

"It is familiar law that, in the absence of a clear manifestation of the intention of the testator to the contrary, estates shall be held to vest at the earliest possible period. The intent to postpone the vesting of the estate must be clear and manifest, and must not arise by mere inference or construction."

To the same effect is Miller v. Keegan, 14 Ind. 502.

The expression of the clause, "die without issue," does not express a contingency to arise after the death of the testator. In Wright v. Charley, supra, is found this statement of the rule:

"In accord with this rule, it is said by Mr. Jarman to be an established rule that where a bequest is simply to one person, and, in case of his death, to another, the primary devisee, surviving the testator, takes absolutely. This rule applies to both personal and real estate, and the authorities in this country uniformly sustain the construction that, in a devise or bequest simpliciter to one person, and, in case of his death, to another, the words refer to a death in the lifetime of the testator. 2 Jarman on Wills, 752. This rule is fully sustained by the authorities. Moore v. Lyons, 25 Wend. 119; Kelly v. Kelly, 61 N.Y. 47; Briggs v. Shaw, 9 Allen, 516; Whitney v. Whitney, 45 N.H. 311; Vanderzee v. Slingerland, 103 N. Y. Apps., 47, S. C. 8 N.E. 247; Reams v. Spann, 26 S.C. 561, 2 S.E. 412; Wills v. Wills, 85 Ky. 486, 3 S.W. 900; Hoover v. Hoover, supra; Harris v. Carpenter, supra."

A devise to A. in the first instance, with a provision over, in case of his death, was held to mean the death of A. before the death of the testator. Stevenson v. Fox, 125 Pa. 568, 17 A. 480, S. C. 11 Am. St. Rep. 922, and note.

We are led to the conclusion that James Helms, if he had survived the testator, would have taken the fee in said lands immediately upon the death of the testator. It is urged that his death before that of the testator caused the devise to lapse; and, so far as it relates to James, we concur. Maxwell v. Featherston, 83 Ind. 339; West v. West, 89 Ind. 529; 2 Redfield on Wills, p. 159, section 8; 1 Jarman on Wills, 5 Am. ed., p. 617, and Beach on Wills, p. 302, section 161.

But most of these authorities, and many others, hold that where the testator clearly provides for the disposition of the property, when the devise shall have lapsed as to the primary devisee, such provision will be upheld. It is said in Beach on Wills, p. 302, section 161, that "this rule, however, being founded upon the supposed intention of the testator, that only those persons who may be living at the time of his death shall receive the gifts bequeathed them by the will, may, of course, be controlled by expressions manifesting a contrary intention, as by a direct provision that a legacy shall not lapse, or by a distinct provision of a substitute in the event of the first beneficiary dying before his decease." In Jarman on Wills, vol. 1, p. 619, it is said that "the only mode of excluding the title of whomsoever the law, in the absence of a disposition, constitutes the successor to the property, is to give it to some one else." In a note to this statement of the law, the author quotes from Williams on Executors (6 Am. ed.), p. 1306, that "it is settled that the testator may, if he thinks fit, prevent a legacy from lapsing; though in order to effect this object, he must declare, either expressly or in terms, from which his intention can be with sufficient clearness collected, what person or persons he intends to substitute for the legatee dying in his lifetime. See, also, Theobald on Wills, 443; 2 Redfield on Wills, 163; Hutchinson's Appeal, 34 Conn. 300," etc.

It will be asked, therefore, did Isaac Helms, in this devise, create a substitute for the devisee James, upon the contingency of the death of James before the death of said Isaac? This question must be answered by ascertaining from the will the intention of the testator. In ascertaining his...