Bruce v. Bissell

• Decision Date: 27 June 1889
• Docket Number: 14,907
• Citation: 22 N.E. 4,119 Ind. 525
• Parties: Bruce et al. v. Bissell et al
• Court: Indiana Supreme Court

22 N.E. 4

119 Ind. 525

Bruce et al. v. Bissell et al

No. 14,907

Supreme Court of Indiana

June 27, 1889

From the Marion Circuit Court.

The judgment is, affirmed, with costs.

R. W McNeal, for appellants.

J. E McDonald, J. M. Butler, A. H. Snow, F. Winter, J. B. Elam, J S. Duncan, C. W. Smith, W. L. Taylor, A. B. Young, F. W Morrison, S. M. Shepard, C. Martindale, C. E. Barrett, B. F. Davis and W. H. Martz, for appellees.

OPINION

Mitchell, J.

This action was brought by James A. and John W. Bruce against George P. Bissell and about one hundred others, to recover the possession of certain real estate lying within the limits of the city of Indianapolis. The plaintiffs claimed title under the last will and testament of William Reagan, who died on the 5th day of April, 1847, the owner of the land in controversy, while the defendants in like manner assert title as purchasers through one whom they claim took it as devisee from the testator. The judgment from which this appeal is prosecuted was adverse to the plaintiffs below, and whether that judgment shall be affirmed or reversed depends upon the construction to be given to the will under or through which both parties claim. So much thereof as is material reads as follows:

"I give and bequeath unto my daughter, Rachel Johnson, wife of Jeremiah Johnson, a tract of land on which she now lives, lying and being in Marion county, known as the south half of the southeast quarter of section number twenty-five, in township number sixteen north, of range three east, for and during her natural life, provided she shall be living at the time of my death, and after her death to the child or children of her body lawfully begotten who may survive her, in fee simple. But if she, said Rachel, should die before me and leave such child or children living at my death, then, in that event, I bequeath said land to said child or children in fee simple. But should she, said Rachel, be living at the time of my death, and afterwards die leaving no such child or children, then I give and bequeath said tract of land to said Rachel for life. Remainder to my right heirs in fee simple.

"I give and bequeath to my daughter, Dovey Bruce, wife of George Bruce, the north half of the aforesaid tract of land for and during her natural life, provided she shall be living at the time of my death, and after her death to the child or children of her body lawfully begotten who may survive her, in fee simple. But if the said Dovey should die before me and leave such child or children living at my death, then and in that event I bequeath said tract of land to said child or children in fee simple. But should the said Dovey be living at the time of my death, and afterwards die leaving no such child or children, then I give and bequeath said tract of land to said Dovey for life. Remainder to my right heirs in fee simple.

"It being my express intention that my said daughters shall respectively enjoy said tracts of land above described and bequeathed, during their respective natural lives, and after their and each of their deaths to descend in fee simple respectively to the child or children of their bodies lawfully begotten that may survive them respectively and survive myself, and in default then to go to my right heirs in fee simple.

"I give and bequeath to my beloved wife, Nancy, during her natural life, the farm on which I now live, known as the southeast quarter of section number twenty-five, in township number sixteen (16) north, of range three east, and after her death to my right heirs in fee simple, except the said Rachel Johnson and Dovey Bruce and their descendants."

The facts are obscurely or incompletely stated in the record and briefs, but, as we understand the record, the land involved in the present litigation is that described in the first paragraph above, and was devised to Rachel Johnson for life, with remainder over to her children. The same land is embraced by the description contained in the last clause of the will, and is devised to the testator's widow for life, together with the north half of the same tract, which is disposed of by the second clause above set out.

The widow and both daughters survived the testator, Rachel having at the time of his death one son, Harrison L. Johnson, who was her only child. She survived her father only nineteen days, her death having occurred on the 24th day of April, 1847. Harrison L. Johnson died intestate on the 15th day of September, 1856, leaving John W. Johnson as his sole heir. The latter died on the 27th day of December, 1872, unmarried and without issue, leaving Nancy Reagan, his great-grandmother, as his next of kin under the statute.

Nancy Reagan, assuming that she took a life-estate in the whole farm under the last clause of the will of her husband, continued in possession, and in 1873, claiming to have inherited the south half in fee from her great-grandson, John W. Johnson, she sold and conveyed it to George Bruce. The land was afterwards platted into streets, alleys and lots. The defendants claim through the conveyance to George Bruce, as his near and remote grantees, while the plaintiffs, the only children and heirs of Dovey Bruce, assert that by the terms of the will of William Reagan they are the owners and entitled to the immediate possession, as the right heirs of the testator, to whom the land was devised upon a contingency which they claim has happened.

It was settled by the judgment of this court in Cloud v. Bruce, 61 Ind. 171, that degrees of kindred are computed in this State according to the rules of the civil law, that the statute of descents covers every conceivable state of circumstances that can surround the descent of property, and that, under section 2471, R. S. 1881, the real estate of an intestate descends to a great-grandmother, as being "the next of kin in equal degree of consanguinity," in preference to a great-aunt or uncle of the same paternal or maternal line. It is hence settled by the above decision, that whatever interest John W. Johnson, the grandson of Rachel Johnson, had in the land at the date of his death, was inherited by his great-grandmother, Nancy Reagan, through whose conveyance the appellees claim title.

On the appellants' behalf it is contended that the intention of the testator, as expressed in his will, was, that his widow Nancy Reagan, should enjoy the entire...