Coquillard v. Coquillard

• Decision Date: 21 June 1916
• Docket Number: No. 9040.,9040.
• Citation: 113 N.E. 474,62 Ind.App. 426
• Parties: COQUILLARD et al. v. COQUILLARD.
• Court: Indiana Appellate Court

62 Ind.App. 426

113 N.E. 474

COQUILLARD et al.

v.COQUILLARD.

No. 9040.

Appellate Court of Indiana, Division No. 2.

June 21, 1916.

Appeal from Circuit Court, St. Joseph County; Walter A. Funk, Judge.

Action for partition by Alexis Coquillard against Joseph A. Coquillard and others. Judgment for plaintiff, and defendants appeal. Reversed, with instructions to restate conclusions of law and to decree accordingly.Rich & Rich, of South Bend, for appellants. Hubbard & Hubbard, of South Bend, for appellee.

CALDWELL, C. J.

Appellee brought this action against appellants to procure the partition and sale, as indivisible, of certain lands situate in St. Joseph county, of which Alexis Coquillard, Sr., died seised in fee, and of the estimated value of $113,575, which lands are the same as those described in the third item of his will hereinafter set out. Coquillard v. Coquillard (No. 9033, this term) 113 N. E. 481, is in many respects a similar case.

The questions properly presented arise under exceptions reserved by appellants to conclusions of law stated on a special finding of facts. The finding, to the extent material here, is to the following effect: Alexis Coquillard. Sr., died testate in said county February 26, 1890, seised in fee of said lands as aforesaid, and leaving surviving him as his only heirs at law his widow, the appellant Maude M. Coquillard, born October 23, 1854, and his sons, appellant Joseph A. Coquillard, born December 18, 1884, and appellee, born January 21, 1882. His will was duly probated March 3, 1590. His estate has been settled and the executor of the will discharged, and all trusts created by the will have been fully executed. Both sons are unmarried, and no child has been born to either of them. The third and seventeenth items of the will are as follows:

“Third. I give and devise to my said sons, and other children if I should have any” (the lands involved describing them) “to have and to hold the same unto my children, and such other children as may be born unto me, in common share and share alike, during their respective lives, and the remainder from and after the death of my said children I give and devise to such children as may be born unto my said children, such descendants of my said children to take the share of their parents per stirpes and by way of purchase. Provided, however, that whereas my said children are now infants, my said wife, Maude M. Coquillard, shall have, hold, manage and control all the land described in this paragraph of this will during the minority of the youngest of my surviving children, and during such period of time she shall be entitled to collect all rents arising from said property, she shall keep the buildings on said premises insured for two-thirds value, and rebuild in case of loss by fire so far as the insurance will go, my trustees to pay balance of cost of rebuilding, and pay all taxes and assessments on said lands and keep said property in good repair.”

“Seventeenth. I give and bequeath all the residue of my estate, both real and personal, to my wife and children, my wife to have one-third and my children two-thirds thereof.”

The court finds that the devised real estate is suburban, with a residence thereon; that it is subject to heavy assessments for taxes and urban improvements; that it yields but little income and is a source of expense greatly exceeding the income therefrom; that its main value consists in its fitness for subdivision and sale as urban real estate; that it is not susceptible of division among the parties and cannot be partitioned among the respective owners; and that it should be sold and the proceeds distributed. The conclusions of law are as follows:

“(1) That the plaintiff Alexis Coquillard has an estate for life in the undivided half of said real estate; that until a child is born to him in lawful wedlock he owns in remainder the fee simple of an undivided one-third thereof; that upon the birth of such child a remainder in fee in the said undivided half shall vest in such child, subject to the father's life estate, and subject to be divested and shared in fee, share and share alike with any other child or children of said Alexis Coquillard, thereafter born to him as aforesaid.

(2) That the defendant Joseph A. Coquillard has an estate for life in the undivided half of said real estate; that until a child is born to him in lawful wedlock he owns in remainder the fee simple of an undivided third thereof; that upon the birth of such child a remainder in fee in the said undivided half shall vest in such child, subject to the father's life estate and subject to be divested and shared in fee share and share alike with any other child or children of said Joseph A. thereafter born to him as aforesaid.

(3) That the defendant Maude M. Coquillard has a fee simple in the undivided one-third of said real estate, subject to the life estate of Alexis Coquillard and Joseph A. Coquillard and subject to be divested on the birth of a child to either of said sons, so as to permit such child to take its father's one-half share in fee simple as above provided.

(4) That said lands should be sold free of all life estates and remainders and a title in fee simple pass to the purchaser free from all claims of the parties herein, their heirs and descendants.

(5) That on the sale of any of said lands the proceeds, after payment of costs, fees, and expenses, as adjudged hereafter by the court, shall be distributed as follows: To each son the value of his life estate as herein found to be computed according to the mortality tables, and the residue to be divided into three equal parts. Each of said sons shall execute his bond payable to the state of Indiana and conditioned that the obligor shall pay over to the duly appointed guardian of any child born to the obligor the share of such child under the third clause of the testator's will, as herein found.”

To determine the correctness of the conclusions of law necessitates that we place a construction on the third and seventeenth items of the will. In doing so, there are certain provisions of the third item that may be eliminated: Thus, the language by which the testator expressed his intention that children born to him subsequent to the execution of the will should participate on equal terms with the children then in being, in the estate created in the latter by such item. Such language may be eliminated, for the reason that additional children were not born to him, and the possibility thereof was removed by his decease. Also, the proviso clause of such item, for the reason that the estate thereby created in and the duties thereby imposed on the widow have terminated by the testator's youngest son reaching and passing his majority. Proceeding to consider the remaining provisions of the third item, first in its relation to appellant Joseph A. Coquillard, it is apparent that the testator thereby devised to such son an estate in the undivided one-half of the lands described, for and during the period of his natural life as tenant in common with his brother. He next devised to the children of such son, as tenants in common a remainder in fee in such undivided one-half of such lands. As no children have been born to such son, the beneficiaries of such remainder are not ascertained, because not in being. The remainder in fee, therefore, is contingent rather than vested. On the birth of a child to such son, such remainder will at once vest in such child, subject to open up to let in children thereafter born to such son, on equal terms with those theretofore born. Fearne on Rem. 9; 24 Am. & Eng. Encyc. of Law, 397; Amos v. Anon, 117 Ind. 19, 19 N. E. 539;Aldred v. Sylvester (Sup.) 111 N. E. 914;Doe v. Considine, 6 Wall. (U. S.) 458, 18 L. Ed. 869;Alsman v. Walters (Sup.) 106 N. Y. 879;McIlhinny v. McIlhinny, 137 Ind. 411, 37 N. E. 147, 24 L. R. A. 489, 45 Am. St. Rep. 186. The estates created in appellee and his children by such item are identical with those created in appellant Joseph A. Coquillard and his children, but involve the remaining undivided one-half of the lands.

It is evident that the estate in fee simple of which testator died seised is not exhausted by the estates carved therefrom by the third item of the will. Limiting our discussion, for purposes of clearness, to the estates created in Joseph A. Coquillard and his children in the undivided one-half of such lands, it is evident that there remains undisposed of by such third item an estate impliedly limited on the life estate created in Joseph A. Coquillard, and impliedly limited by the contingent remainder in fee created in his child or children. The event by which such residue of the estate is limited is of a nature that it may never occur. A child or children may or may not be born alive to Joseph A. Coquillard. If a child or children be born alive to him, such residue of estate will thereupon determine, and such contingent remainder in fee will become vested as aforesaid. The course of time will disclose that a child has been, or that a child cannot be, born to him. When the possibility of the birth of a child to him has been removed, if such should be the case, such residue of estate will ripen into a remainder in fee free from limitations over. Such residue of estate is therefore in the nature of a qualified or determinable fee. Tiedeman's Real Prop. §§ 36 and 211; 16 Cyc. 602; 10 R. C. L. 652; First Universalist Society v. Boland, 15 L. R. A. 231, note. As such estate may continue forever, it is an estate in fee. It is an estate of inheritance, descendible to heirs, and may be devised or assigned. Aldred v. Sylvester, supra; Mendenhall v. First New Church, 177 Ind. 336, 98 N. E. 57.

In order to avoid partial intestacy, a residuary clause in a will should be liberally construed. Words used therein are given the widest possible scope. If general in its terms, all property, not otherwise disposed of and not specifically...