Brookover v. Branyan

• Decision Date: 22 May 1916
• Docket Number: No. 22803.,22803.
• Citation: 112 N.E. 769,185 Ind. 1
• Parties: BROOKOVER et al. v. BRANYAN et al.
• Court: Indiana Supreme Court

185 Ind. 1

112 N.E. 769

BROOKOVER et al.

v.BRANYAN et al.

No. 22803.

Supreme Court of Indiana.

May 22, 1916.

Appeal from Circuit Court, Adams County; James T. Merryman, Judge.

Action by Lucinda J. Branyan and others against Aseal Brookover and others. From a judgment for plaintiffs and an order denying a new trial, defendants appeal. Transferred from Appellate Court under section 1405, Burns' Ann. St. 1914. Reversed and remanded, with directions.

J. W. Moffett and C. K. Lucas, both of Huntington, Heller, Sutton & Heller, of Decatur, and Lesh & Lesh, of Huntington, for appellants. R. A. Kaufman, of Huntington, C. A. Yotter, of Angola, and Watkins & Butler, of Huntington, for appellees.

MORRIS, J.

Action by appellees to quiet title. The complaint alleges that appellees are the owners in fee simple of the undivided one-third of certain real estate, subject to a life estate therein owned by Mary Ann Brookover, a defendant in the action. On the issues joined there was a trial by the court with special findings of fact and conclusion of law, and judgment for appellees. Error is assigned on the conclusion, which involves a construction of the will of George W. Brookover. From the findings it appears that George W. Brookover died testate in 1879, the owner of the land in question, comprising 370 acres, and leaving as his heirs his widow, Eliza J. Brookover, his children, Andrew J., Aseal, Mary Ann, and Walter Brookover, Margaret B. Spencer and Ida Kauffman, and two grandchildren, Gussie B. Best and Lucinda Best, children of his deceased daughter, Lucinda. His will, so far as pertinent here, reads as follows:

“Item Second. I will and bequeath to my wife Eliza J. Brookover all my property both real and personal, including notes and accounts, giving her the power to sell and convey any and all of my real estate for her use.

Item Third. If any of said property should be left at the death of my wife, it is my will that all of such property so left shall go to my daughter Mary Ann Brookover, if she should then be living.

Item Fourth. Upon the death of my wife and the death of my daughter Mary Ann Brookover, their funeral expenses and just debts be paid, then I desire that whatever property may be left may be equally divided among my heirs, viz.: Andrew J. Brookover, Aseal Brookover, Mary Ann Brookover (Lucinda Best, daughter of George W. Brookover, being deceased) her heirs, viz., Gussie B. Best and Lucinda Jane Best, Walter L. Brookover, Margaret B. Brookover (now Spencer) and Ida A. Brookover (now Kauffman).

Item Fifth. I will and bequeath to my daughter Mary Ann Brookover one thousand dollars already deposited in bank for her-the interest to be used for her benefit and the principal if necessary for her use-it being a gift to her extra of my heirs. If anything be left at her death it is to be equally divided between my heirs. In addition to this I have heretofore had assigned to my daughter Mary Ann, notes mortgages given by James Archie to the amount of above one thousand dollars. I want this mortgage or the proceeds of it to belong absolutely to her-to be used for maintenance and support. If anything be left from it at her death I desire whatever may be left to be divided equally among my heirs.”

After testator's death Gussie B. Best married Charles A. Yotter, appellee, and died testate, leaving her husband as her sole beneficiary. Lucinda Best, appellee, married Everett C. Branyan. Ida Kauffman died intestate in 1889, leaving Roscoe A. Kauffman, her husband, and Edna M. Kelly, appellees, as her sole heirs. Testator's widow died testate in 1910, and by her will devised the land in controversy to certain of the appellants. Said Mary Ann Brookover is, and was when the will was made, a person of unsound mind, and has a guardian.

Testator's widow never made any sale or conveyance of the land, and the record title thereto remains as at testator's death. The court also found certain facts in relation to an action to quiet title instituted by appellants against appellees in 1897, but in view of the conclusion reached here we deem it unnecessary to set out such findings. The court concluded that appellees are the owners in common of the undivided one-third of the land, subject to a life estate therein held by Mary Ann Brookover, and that they are entitled to a judgment against appellants quieting their title. Appellants' separate motions for a new trial were overruled.

Counsel for appellants contend that the will devised to testator's widow a fee-simple estate, and in support of that contention invoke the rule declared in Cameron v. Parish, 155 Ind. 329, 336, 57 N. E. 547, as follows:

“Where an estate *** is generally and indefinitely given to a person with full power of disposition, in the absence *** of an express mention to show that the estate given is limited to the life of the donee, *** such devise *** carries with it a fee simple.”

They further contend, pursuant to the rule declared in Mulvane v. Rude, 146 Ind. 476, 45 N. E. 659, that where an estate in fee simple is devised to a person, a gift over to another of such portion thereof as may remain undisposed of by the first taker at his death is void for repugnancy. Appellees contend that the widow was devised a life estate only, with a limited power of disposition added; that on testator's death the fee simple vested in testator's children (except Mary Ann) and the two grandchildren, subject to life estates in favor of the widow and Mary Ann, and also to the widow's power of disposition, which was never exercised.

[1] The common-law rule that a general devise of realty, without defining the devisees' interest, gives only a life estate, remains in force here, though modified by section 3123, Burns 1914, which provides that:

“A devise, in terms denoting the testator's intention, to devise his entire interest in all his real or personal property, shall be construed to pass all of the estate in such property.” Mulvane v. Rude, supra.

[2] The interest devised by this will to the widow is not defined here, but the clause “I will bequeath to my wife Eliza J. Brookover all my property both real and personal,” if standing alone, might well be held, under section 3123, Burns 1914, supra, and the presumption against intestacy, to devise a fee simple. Conover v. Cade (1916) 112 N. E. 7. But the clause does not stand alone, and, in seeking the testator's particular intent, courts must consider all relevant portions of the will, and may also view it in the light of the testator's surroundings when it was executed. The devise to Eliza J. Brookover is not subject to the application of said rule declared in Cameron v. Parish, supra. While general and indefinite, it is not accompanied with “full power of disposition,” but, on the contrary, is limited solely to sales for “her use.” It does not authorize a deed of conveyance by way of gift, or a devise by will, nor does it contemplate a sale except for her use.

[3] A limited power of disposition is repugnant to the idea of a devise of a fee simple which is consistent only with the theory of unlimited power to convey and devise. Skinner v....