Bowser v. Mattler

• Decision Date: 15 December 1893
• Docket Number: 16,370
• Citation: 35 N.E. 701,137 Ind. 649
• Parties: Bowser, Administrator, v. Mattler
• Court: Indiana Supreme Court

35 N.E. 701

137 Ind. 649

Bowser, Administrator, v. Mattler

No. 16,370

Supreme Court of Indiana

December 15, 1893

Reported at: 137 Ind. 649 at 653.

From the Marion Circuit Court.

Judgment reversed, with directions to grant a new trial.

D. V Burns, A. C. Harris, V. G. Clifford, W. F. Browder, C. S Denny and W. F. Elliott, for appellant.

R. C. Lamb, R. Hill, J. S. Duncan, C. W. Smith and H. Warrum, for appellee.

OPINION

Howard, C. J.

This was a suit for the recovery of personal property, money, and choses in action, alleged to belong to the estate of appellant's intestate, and to be wrongfully in the possession of the appellee.

The complaint is in three paragraphs, to which a general denial was filed.

The first paragraph charges that on the death of the intestate, Anna Maria Mattler, who had made her home with her son, the appellee, the said appellee took possession of her said estate, converted the same to his own use, and now refuses to surrender it to the appellant as administrator.

The second paragraph is substantially the same as the first, adding a bill of particulars to show items due the estate.

In the third paragraph of the complaint it is alleged that the property in dispute is the proceeds of an estate left by John Mattler, deceased, husband of Anna Maria Mattler, and father of the appellee.

The decision of the case depends upon the proper construction to be given to the following clause of the will of John Mattler:

"Whereas, my wife, Anna Maria Mattler, has always lived with me in peace and harmony, and has united with me, labored and brought it to our present prosperity, therefore I give to her, the said Anna Maria Mattler, all the property, movable or immovable, which, at the time of my decease, may be owned by me; it shall be hers without any interference from anybody, for the space of her lifetime; it shall be hers in the full sense of ownership, even so far that she is empowered to sell, mortgage or divide the same; likewise I make, constitute and appoint my said wife, Anna Maria Mattler, as my lawful executor and administrator of this, my last will and testament. But this shall not be so understood as that my said wife has the right to divide the property herein named among persons not kindred to me to the disadvantage of our children, but they shall, after her death, divide the estate among them equally."

John Mattler's property consisted chiefly of real estate, and counsel for appellee contend that his will gave to Mrs. Mattler the absolute fee; counsel for appellant, on the contrary, contend that the will gave to her a life estate only, coupled with a power to sell if she so chose, but that the estate, or any of its proceeds remaining at her death should go equally to the children of John Mattler, who were also her own children, and of whom the appellee is one.

The controlling rule for the construction of wills is to ascertain and give effect to the intention of the testator. Ridgeway v. Lanphear, 99 Ind. 251; Wood v. Robertson, 113 Ind. 323, 15 N.E. 457; Waters v. Bishop, 122 Ind. 516, 24 N.E. 161; Eubank v. Smiley, 130 Ind. 393, 29 N.E. 919.

Guided by this rule, and considering the foregoing clause of the will of John Mattler in all its parts, we must conclude that the will gave to Anna Maria Mattler a life estate only in his property, and not a fee simple. The gift is first made "for the space of her lifetime." Full control or "ownership" is then added, "even so far that she is empowered to sell, mortgage or divide the same." Then, as if impressed with the idea that the large powers given over the estate might be so interpreted as to give full and unlimited title to the property, he inserts a modifying clause: "This shall not be so understood as that my said wife has the right to divide the property...