Burton v. Carnahan

• Decision Date: 10 October 1906
• Docket Number: No. 5,795.,5,795.
• Citation: 38 Ind.App. 612,78 N.E. 682
• Parties: BURTON et al. v. CARNAHAN et al.
• Court: Indiana Appellate Court

38 Ind.App. 612

78 N.E. 682

BURTON et al.

v.CARNAHAN et al.

No. 5,795.

Appellate Court of Indiana, Division No. 2.

Oct. 10, 1906.

Appeal from Circuit Court, Gibson County; Oscar M. Welborn, Judge.

Action by David M. Burton and others against Thomas J. Carnahan and others to quiet title to real estate. From a judgment for defendants, the plaintiffs appeal. Affirmed.

Jno. H. Miller, Jas. W. Westfall, Luther Benson, and Lucius C. Embree, for appellants. Thos. Duncan and L. T. Shanner, for appellees.

COMSTOCK, P. J.

Action to quiet title to real estate. Alexander Burton died July 25, 1898, testate, the owner of the real estate in controversy, leaving, as his only heirs at law, his widow, Mary E. Burton, and five children, the appellants David M. Burton, Martha A. Sokeland, Mary A. Ahleman and Hettie B. Niekamp, and one Amie I. Burton. The widow died April 11, 1903, and on August 12, 1903, the daughter, Amie I., married the appellee Carnahan. She died March 21, 1904, leaving her husband, but no issue or descendants surviving her. The record presents for decision, but one question; that is: What interpretation shall be placed upon the will of said testator? The only parts material to the matter in dispute, are the first and sixth items. The first item gives to the widow a life estate in the real estate in question. Item 6 is as follows: “It is my will and desire, and I so desire, that upon the death of my wife, the following part of my real estate so devised to my wife as above set out shall go to my daughter, Amie I. Burton, to be by her held during her natural life, and no longer, and, at her death, the same to go to and vest in her bodily heirs forever and in fee simple, to wit: The northwest quarter of the northeast quarter of section 16, township 3, south, range 9 west; the same being forty acres more or less. In case the said Amie I. Burton should die without issue of her body living, then, and in that case, said land so devised to her shall go to and vest in her brother and sisters equally and the descendants of such as may be dead.” If said will gave to Amie a fee simple, the judgment of the trial court must be affirmed. If the title to said lands on the death of said Amie, by virtue of the conditional limitations of said item 6, vested in appellants, then the judgment must be reversed.

The law favors the vesting of remainders at the earliest possible moment and in harmony with the rule just stated, words of survivorship in a will are construed as referring to the death of the testator in all cases where the words of the instrument are not such as clearly to show that they refer to a subsequent date. Taylor v. Stephens et al. (Ind. Sup.) 74 N. E. 980, and cases cited; Campbell et al. v. Bradford et al. (Ind. Sup.) 77 N. E. 849;Moores v. Hare, 144 Ind. 573, 43 N. E. 870;Harris v. Carpenter, 109 Ind. 540, 10 N. E. 422;Hoover v. Hoover, 116 Ind. 498, 19 N. E. 468. The purpose in construing a will is to ascertain the intention of the testator, and to carry it out, so far as the same may not...