O'Boyle v. Thomas

• Citation: 19 N.E. 112,116 Ind. 243
• Decision Date: 12 December 1888
• Docket Number: 14,441
• Parties: O'Boyle et al. v. Thomas, Trustee
• Court: Supreme Court of Indiana

19 N.E. 112

116 Ind. 243

O'Boyle et al. v. Thomas, Trustee

No. 14,441

Supreme Court of Indiana

December 12, 1888

From the Vermillion Circuit Court.

The judgment is affirmed, with costs.

J. Jump and J. C. Davis, for appellants.

B Harrison, W. H. H. Miller and J. B. Elam, for appellee.

OPINION

Howk C. J.

On the 10th day of March, 1885, one William Collett, being embarrassed financially and unable to pay his debts as they matured, made a voluntary assignment of all his property real and personal, in trust for the benefit of all his creditors, to the appellee, Leslie D. Thomas, who accepted such trust. William Collett acquired his title to the real property described in such assignment by devise under the last will and testament of his father, Josephus Collett, deceased, and from no other source. In 1872 said Josephus Collett died testate, in Vermillion county, Indiana, and on the 24th day of February, 1872, said last will and testament was duly admitted to probate in the proper court of that county. Under the devise therein to him, said William Collett took possession of the real property devised thereby to him, and claimed to be the owner thereof in fee simple. After his execution of such voluntary assignment, it was questioned whether the said William Collett, by the terms and provisions of such last will and testament, took an absolute and unconditional estate, in fee simple, in the real property so devised to him therein, and assigned by him to appellee, Thomas, in trust for the benefit of his creditors. To remove all doubts on this question, appellee, Thomas, commenced this suit to obtain a judicial construction of such last will and testament, and to quiet his title, as assignee and trustee in such voluntary assignment, in and to the real property so assigned to him.

Appellants were made defendants in such suit as the only persons in being who could, in any contingency, claim an interest in such real property adversely to appellee's title. Defendants answered by general denials of the complaint. The cause was submitted to the court for final hearing, and a finding was made in plaintiff's favor, and over defendants' motion for a new trial a decree was rendered as prayed for in the complaint.

Error is assigned here by appellants upon the overruling of their motion for a new trial. The case is before us on the evidence, and the only question for our decision may be thus stated: By the terms and provisions of the last will and testament of Josephus Collett, deceased, what estate did his son, William Collett, take in the real property devised to him? The devise to said William Collett is found in item second of the testator's will, and is expressed in these words, namely:

"I devise to my son, William Collett, who is the son of Fanny Malone, those certain tracts or parcels of land situate in Vermillion county, in the State of Indiana, and described as follows, to wit:" (Description omitted). "The said William Collett to have and to hold all the lands aforesaid in fee simple to himself and his heirs forever."

This is all of item 2d of the testator's will, with the exception of the description of the lands devised. If it were all of such will, there would be no room for even the slightest doubt in relation to the estate which William Collett would take in the real property devised to him by the testator. By plain, apt and unequivocal words, having a clear legal meaning and needing no interpretation, the testator devises to his son, William Collett, in the second item of his will, an absolute and unconditional estate, in fee simple, in the tracts or parcels of land described therein. But it is claimed that the devise to William Collett, in the second item of the testator's will, is so controlled by the provisions of the third item of such will as to show the testator's intention that William Collett, in a certain contingency, should take no more than an estate for his own life in the lands devised to him. This third item of the will reads as follows, to wit:

"Item 3d. I devise to Eliza Collett, sister of the said William Collett and daughter of the said Fanny Malone, during her natural life, those certain tracts and parcels of land situate in Vermillion county, and State of Indiana, and described as follows, and the rents, issues and profits thereof, to wit:" (Description omitted). "And it is further my will and design that the fee simple of the said lands, last before described and devised to the said Eliza Collett during her natural life, shall vest in the children of her body begotten, who are or may be living at the time of her death; but, in case of her death without a child or children surviving her, then said lands and the fee simple therein shall descend to and vest in her said brother, the said William...