Campbell v. Bradford

• Decision Date: 09 May 1906
• Docket Number: 20,566
• Citation: 77 N.E. 849,166 Ind. 451
• Parties: Campbell et al. v. Bradford et al
• Court: Indiana Supreme Court

77 N.E. 849

166 Ind. 451

Campbell et al. v. Bradford et al

No. 20,566

Supreme Court of Indiana

May 9, 1906

From Morgan Circuit Court; Joseph W. Williams, Judge pro tem.

Suit by Perry Bradford and others against Albert T. Campbell and others. From a decree for plaintiffs, defendants appeal. Transferred from Appellate Court under § 1337o Burns 1901, Acts 1901, p. 565, § 15.

Affirmed.

R. C Minton, S. C. Kivett, G. W. Grubbs and H. J. Everett, for appellants.

Renner & McNutt, W. E. McCord and Oscar Matthews, for appellees.

OPINION

Monks, J.

The controlling question presented for consideration in this case involves the construction of the sixth item of the last will and testament of Joseph Campbell, deceased. By the fifth item in his will the testator bequeathed to his wife a life estate. The sixth item reads as follows:

"At the death of my wife, I direct that all my real estate shall descend and go to my two sons, Louis E. Campbell and William A. Campbell, in equal proportions, each taking share and share alike, and if either of them shall be deceased leaving children surviving him then such child or children shall inherit all their father's interest in my real estate, and in case of either of my sons being deceased and leaving no child or children living then the surviving son shall inherit all my real estate at the death of my wife."

The testator died on July 29, 1881, leaving surviving him Marcia Campbell, his widow, and Louis E. Campbell and William A Campbell, his only children and heirs at law. Appellees claim to own and hold in fee simple the land devised in said will to said sons, under and through their deeds of general warranty, in which their wives and said widow joined executed after the death of said testator and the probate of said will. Afterwards said Louis E. Campbell died intestate in 1889, leaving surviving him a widow and children. Said son William A. Campbell died in 1896, leaving surviving him his widow and one son. Marcia Campbell, the widow of said testator, died intestate in 1902, having never remarried. Albert T. Campbell, the son and only heir of said William A. Campbell, deceased, and Clyde Campbell, Guy Campbell, Laura Wilhite and Daisy Brown, children and only heirs of said Louis E. Campbell, deceased, appellants in this action, claimed after the death of said widow of the testator to own the real estate in controversy under said will, on the ground that said William A. and Louis E. Campbell, having died before said widow, at her death the title thereto vested in them in fee simple by virtue of the provisions of item six thereof. Appellees thereupon brought this action to quiet their title to said real estate, and had judgment and decree in the court below quieting their title, and this appeal is prosecuted to reverse said judgment.

The question is, did William A.Campbell and Louis E. Campbell upon the death of their father, the testator, have a vested remainder in said real estate subject to the particular estate of the widow? If they did, this case must be affirmed; otherwise, it must be reversed. "The law favors an interpretation which will permit estates to vest at the earliest possible moment, and, to that end, 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 show that they refer to a subsequent date." Taylor v. Stephens (1905), 165 Ind. 200, 74 N.E. 980, and cases cited; Moores v. Hare (1896), 144 Ind. 573, 43 N.E. 870; Harris v. Carpenter (1887), 109 Ind. 540, 10 N.E. 422; Hoover v. Hoover (1889), 116 Ind. 498, 19 N.E. 468. The law not only...