Corey v. Springer

• Decision Date: 25 April 1894
• Docket Number: 16,987
• Citation: 37 N.E. 322,138 Ind. 506
• Parties: Corey, Executor, v. Springer et al
• Court: Indiana Supreme Court

37 N.E. 322

138 Ind. 506

Corey, Executor, v. Springer et al

No. 16,987

Supreme Court of Indiana

April 25, 1894

Petition for a Rehearing Overruled Sept. 21, '94.

From the Rush Circuit Court.

The judgment is affirmed.

O. G Miller, W. A. Moore, J. M. Stevens, G. Sexton, J. E. Watson and T. J. Newkirk, for appellant.

W. J Henley and L. D. Guffin, for appellees.

OPINION

Dailey, J.

This action involves the construction of the last will of Gabriel Springer, deceased. Said Gabriel Springer died testate in 1871, leaving as his only heirs at law, his wife Hannah Springer, his son John J. Springer, and his two daughters Nancy J. Miller and Sarah Bromlett. John J. Springer died testate in Rush county, Indiana, on December 25, 1891, leaving neither wife nor issue surviving him. Nancy J. Miller died, leaving Oscar Miller and Roy H. Miller, her only children and heirs at law surviving. Sarah Bromlet died, leaving her children, Perry F. Bromlett, Wesley F. Bromlett and Jesse T. Bromlett, defendants herein, surviving. The widow, Hannah Springer, still survives and since the testator's death has remained unmarried. The appellant, as executor of the last will of John J. Springer, deceased, filed his petition in the Rush Circuit Court, to sell certain real estate embraced in the will of Gabriel Springer, deceased, to pay the debts of the testator, John J. Springer, to which petition the appellees are parties defendant.

The defendants, Oscar Miller and Roy H. Miller, by their guardian ad litem, William J. Henley, and Perry F., Wesley F., and Jesse T. Bromlett, by their guardian ad litem, Lot D. Guffin, have filed their answers thereto, setting up the will of said Gabriel Springer. The controversy which arises upon demurrer to the answer is, what was the nature of the estate devised by said Gabriel's will to John J. Springer, appellant's testator? The items of the will which call for construction are the third and fourth. They are as follows:

"Item third. It is my will, after the payments aforesaid are made, and after the expenses of administration are all paid, that my wife, Hannah Springer, if she shall survive me, and remain my widow, shall have the use of all the remainder of my estate, both real and personal, during her lifetime, and I accordingly bequeath the same to her as aforesaid, to be kept and used by her during the time of her natural life, if she so long remain my widow; but in case of her marriage after my decease, this provision of my will to be void, and to be of no effect, and in that case, I desire that she take out of my estate, real and personal, only such provision as the laws of the State of Indiana make for widows at the time of my death.

"Item fourth. At the death of my wife, if she shall not marry again, I bequeath all my property, share and share alike, to my children. If any of my children shall be dead at the time of such distribution or disposition, leaving children, such children are to take the share of their deceased father or mother, as the case may be. In case my wife should again marry, and so take the provision herein made for her, in that event, under the law of Indiana, I bequeath the remainder of my estate, real and personal, to my children, and to the representatives of such as may be dead, if any, as provided in the former part of this will."

As we understand the contention, appellant insists that by the terms of the will, the widow, Hannah Springer, took an estate for life in the lands in controversy, and that a remainder in fee vested in Gabriel Springer's children, of whom John J. Springer was one; and that such remainder in fee vested absolutely and unconditionally in said John at the time of his father's death. Appellees assume, upon the contrary viewing the matter aside from the attempted limitation concerning, or with respect to marriage, that after carving out a life estate for his widow, it was the manifest intention of the testator, by the terms of his will, to give to his children living at her death, and to the descendants of such as were then dead, a vested remainder; that the testator appointed a fixed time when the conditional fee should ripen into an absolute fee in his children; a time when the division or distribution, as he styles it, should take place, and that time was fixed at the death of the widow. As opposed to the theory that John J. Springer took an absolute, unalterable and unconditional fee at the time of the testator's death, it is maintained by the appellee that the remainder over to him at the time of the testator's death was only in the nature of a vested remainder; that it was alterable, conditional and limited, and that the time fixed by the testator himself for its ripening into a certain and absolute fee-simple was at the event of the widow's death. In our opinion the controversy in this case does not depend upon a solution of the question, whether the remainder to the son was a vested or a contingent one. It is not contended by the appellees that the remainder to him was contingent in the technical sense of the term. The test as to whether an estate is vested or contingent is this: "The right and capacity of the remainderman to take possession of the estate, if the possession were to become vacant, and the certainty that the event, upon which the vacancy depends, must happen some time, and not the certainty that it will happen in the lifetime of the remainderman, determine whether or not the estate is vested or contingent." Bruce v. Bissell, 119 Ind. 525, on p. 530, 22 N.E. 4, citing Croxall v. Shererd, 72 U.S. 268, 5 Wall. 268, 18 L.Ed. 572; Tiedeman Real Prop., section 401. These authorities establish the doctrine that an estate in remainder is not rendered contingent by the uncertainty of the time of enjoyment. "It is the uncertainty of the right that renders an estate contingent, and not the uncertainty of the enjoyment." Wood v. Robertson, 113 Ind. 323, on p. 325, 15 N.E. 457. In the construction of wills, it is a familiar rule that the intention of the testator must prevail. Wood v. Robertson, supra, on p. 326. The fundamental rule in the construction of wills is, that the intention of the testator, if not inconsistent with some established rule of law, must control. Jackson v....