Duzan v. Chappel
| Decision Date | 13 May 1908 |
| Docket Number | 6,511 |
| Citation | 84 N.E. 775,41 Ind.App. 651 |
| Parties | DUZAN ET AL. v. CHAPPEL ET AL |
| Court | Indiana Appellate Court |
From Hancock Circuit Court; Edward W. Felt, Judge.
Suit by Mary M. Duzan and others against William Chappel and others. From a decree for defendants, plaintiffs appeal.
Affirmed.
John C Jenkins and William Ward Cook, for appellants.
U. S Jackson and R. L. Mason, for appellees.
OPINION
William Galbreath died testate, the owner in fee simple of the lands described in the appellants' complaint. So far as it affects the questions presented by this appeal, his will provided as follows:
This will was evidently drawn by either the deceased himself, or by some one unskilled in the preparation of documents of this character, but it is clearly manifest that it was the purpose of the testator to give to his wife, Nancy Galbreath, a life estate in his real estate, if she remained his widow, and the fee to James B. Galbreath conditioned that he outlive Nancy Galbreath, and that, if he died during the life of Nancy Galbreath, then the farm was to be sold, and out of the proceeds Elizabeth Gwinn was to have $ 400, the children of Margaret Duzan $ 400, and the residue divided among his heirs at law. That such was the meaning and purpose of this clause of the testator's will is not questioned. The testator left surviving him his widow, Nancy Galbreath, said James B. Galbreath, named in his will, who was his son, Elizabeth Gwinn and Mary Duzan, who were his daughters, and Leander Duzan and Mary C. Virgin, who were the children of his deceased daughter, Margaret Duzan, and who were his sole heirs at law. The widow never married, and was survived by James B. Galbreath, who died without children or other descendants living, but leaving surviving him his widow, Adaline Galbreath, who subsequently died intestate. The appellants are the sister and the children of the deceased sisters of James B. Galbreath. The appellees are the administrators of the estate and the heirs at law of Adaline Galbreath. The appellants claim title to the land described in the complaint under the second clause of the will of said William Galbreath. The appellees claim title by inheritance from James B. Galbreath, whom they claim took the remainder in fee in said land under said will.
The appellees contend that inasmuch as James B. Galbreath left his widow surviving him, and she would take the property as his heir, that therefore the contingency mentioned in the will, "if James B. Galbreath should die without an heir," upon the happening of which "his part shall fall back to his sisters," never occurred, and that therefore, appellants could take nothing under this provision of the will. This contention cannot be sustained. It is clearly manifest...
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