Burrell v. Jean

Decision Date27 February 1925
Docket NumberNo. 24893.,24893.
Citation146 N.E. 754,196 Ind. 187
PartiesBURRELL v. JEAN et al.
CourtIndiana Supreme Court


Suit by Beldora Burrell against Maude B. Jean and others to quiet title. Judgment for defendants was affirmed in Appellate Court on plaintiff's appeal, and cause transferred from the Appellate Court under section 1394, cl. 2, Burns' Ann. St. 1914; Acts 1901, p. 565.

Reversed and remanded, with directions.

Superseding former opinion in 132 N. E. 704.

Smith, Remster, Hornbrook & Smith, of Indianapolis, John M. Lewis and Thomas M. Honan, both of Seymour, and Watson & Esarey, of Indianapolis, for appellant.

Montgomery & Montgomery, of Seymour, and J. Ross Robertson, of Brownstown, for appellees.


Appellant brought this action against appellees to quiet her title as a fee-simple owner of certain real estate. The first paragraph of her complaint contained the ordinary allegations, and the second stated the facts in detail upon which she relied to show fee-simple ownership. Issues were formed by answers and replies, which were submitted to the court for trial, resulting in a judgment in favor of appellees. The overruling of appellant's demurrer to each paragraph of affirmative answer filed by certain appellees, and the overruling of her motion for a new trial, are separately assigned as errors.

The ruling questions presented by this appeal may be indicated by a brief statement of the facts which appear both from the pleadings and the evidence at the trial.

Early in the year 1887, Henry G. Smith departed this life testate, leaving, as his only devisees, beneficiaries, and heirs at law, the appellant, a daughter, and appellee Miller, a daughter, and other children who have since died leaving the other appellees herein who are grandchildren, and one great-grandchild. The last will of Henry G. Smith was probated in the Jackson circuit court on February 5, 1887. That part of the will material to this controversy reads as follows:

“Item 5. I will and devise to my daughter Beldora Pankey, for and during her natural life, the following real estate in Jackson county, Indiana, namely: (Real estate described.) And after the death of my said daughter, I give and devise said lands to her children, and if she dies leaving no child or descendant of any child surviving her, said real estate shall be equally divided among my heirs.”

By other items of this will other real estate was devised by the testator to each of his other children in practically the same language used in item 5. He also bequeathed certain personal property among his children. Some of the original items of the will were more or less modified by codicils. Item 4 of codicil 3 reads as follows:

“I give and bequeath to my daughter Beldora Pankey, all of my personal property except the roan mare and except my money, accounts, notes and certificates of stock.”

During the administration of the testator's estate, a question arose concerning the division of the personal property. Thereupon the appellant in this case, on April 25, 1887, brought a proceeding against the executor in the Jackson circuit court asking for a construction of the will pertaining to the personal property. On August 28, 1887, this appellant, complying with an order of the Jackson circuit court, filed an amended complaint making all of the legatees and devisees of Henry G. Smith parties. In that complaint, founded on item 4 of codicil 3, she alleged that she was “entitled to have her title thereto declared, quieted and settled by a judgment of the court, subject always to the demands thereon for the payment of all just debts of the testator.” Then follows other allegations as to the amount of the personal property of the testator, and the claim of the executor and other heirs and devisees that the will in that respect was uncertain and indefinite, although in that regard it was definite and certain, and that-

“Under and by virtue of the same she became the owner of the personal property in addition to other bequests and devises made to her in said will, and she therefore asks the court for a construction of said last will and testament of the decedent and that all her rights thereunder be settled and put at rest.”

Certain of the defendants to that action answered, wherein they averred:

“That under said ninth item, the plaintiff (appellant here) will be entitled to receive one-fifth part in value, less the excess of her said real and personal property over the property received by each of the other heirs aforesaid, and defendants ask the court to construe said will so that the plaintiff receive an equal share with each of the other children, viz. (naming them) from the estate of the said decedent and no more.”

The ninth item of the will was in the nature of a residuary clause whereby the testator disposed of his undemised or unbequeathed property to his children equally, and to equalize in value bequests and advancements theretofore made to them by the testator.

On November 16, 1887, two of the defendants, one of whom was notified by publication, were called and defaulted. Three were minors, and for these a guardian ad litem was appointed; but no answer by such guardian is shown to have been filed. Thereafter, on January 17, 1888, in the Jackson circuit court, the following judgment was entered:

“Come again the parties by their attorneys, and by consent and agreement of the parties and upon the defaults heretofore made, the court enters the decree following construing the last will and testament of Henry G. Smith, deceased. It is ordered and decreed by the court that under and by virtue of said last will and testament after the payment of funeral expenses, debts and expenses of administration. *** And that by virtue of item 5 of said will, Beldora Pankey is to have and to hold for and during her natural life the real estate described in said item, to wit (describing the real estate), and after the death of said Beldora Pankey said real estate shall descend in fee simple to her children or the descendant of any deceased child in equal shares, and if she dies leaving no child or descendant of any child surviving her, said real estate shall be equally divided among the heirs of said testator.”

At the time of the death of Henry G. Smith, Simeon Pankey, a son of this appellant, was alive, and for aught appearing, was the only child born to this appellant either before or since that time. In the year 1889 Simeon Pankey died intestate, unmarried, and without issue, leaving his mother, appellant here, as his sole and only heir at law. Hence appellant is claiming a fee-simple title to the real estate described in item 5 of the will by virtue of the laws of descent. Appellees answered by a general denial and former adjudication, wherein it was averred that in a former suit to construe the will a decree was entered to the effect that the fee-simple title to the land in question descended to appellant's son only at the death of his mother. And further answering that appellant's son never acquired an indefeasible fee-simple title to the real estate, and therefore appellant could not and did not acquire through him such title.

Three questions are submitted by this appeal: (1) In whom did the fee to the real estate described in item 5 vest upon the death of Henry G. Smith? (2) Was the issue in the instant case presented and decided in the former action wherein Simeon Pankey was a defendant? (3) Did the so-called “consent judgment” estop this appellant from thereafter inheriting from her son the real estate described in item 5?

An answer to the first question would seem to require that we give some attention to the will of the decedent, Henry G. Smith, and especially to item 5 thereof. That item had to do with real estate only, and thereunder it is claimed by appellant that Simeon Pankey, upon the death of the testator, took the fee in remainder unconditionally. On the other hand, appellees assert that Simeon Pankey at most had only a contingent or conditional fee which was divested by his death in the lifetime of the life tenant.

All parties concede that by item 5 of the will at bar testator gave to Beldora Pankey, now Beldora Burrell, this appellant, an estate for life. The various contentions here submitted by counsel for each of the parties relate to that part of the same item wherein the testator disposed of the fee. The several conclusions drawn, based upon different meanings, attributed to the wording of this will, are exceedingly persuasive that a correct result in this matter may be reached only by a resort to established rules for the construction of an ambiguous will.

[1][2] For this purpose, there are many fixed rules which the court may call to its aid when the intention of the testator is not clearly expressed, or when, to give effect to such intention, a well-established rule of law will be contravened. In the case at bar it is only necessary that we keep in mind that “the law looks with disfavor on postponing estates, and the intent so to do, must be clear and not arise from inference or construction; it presumes that words postponing the estate relate to the beginning of the enjoyment of the remainder, and not to the vesting of such an estate.” In the absence of a clear intention to the contrary, it vests “remainders absolutely, rather than contingently or conditionally; partial intestacy will be avoided if possible.”' Alsman v. Walters, 184 Ind. 565, 570, 106 N. E. 879, 111 N. E. 921;Aldred v. Sylvester, 184 Ind. 542, 111 N. E. 914;Busick v. Busick, 65 Ind. App. 655, 115 N. E. 1025, 116 N. E. 861.

Appellant insists that the will in question gave Simeon Pankey a fee absolute; while appellees, by way of argument, meeting appellant's insistence, say that “similar devises were made to each of his children, and under the suggested construction, if any of them died after the testator without surviving issue, he would have died intestate as to real estate given for life to...

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