Earnhart v. Earnhart

• Decision Date: 11 March 1891
• Citation: 26 N.E. 895,127 Ind. 397
• Parties: Earnhart v. Earnhart et al.
• Court: Indiana Supreme Court

127 Ind. 397

26 N.E. 895

Earnhart

v.Earnhart et al.

Supreme Court of Indiana.

March 11, 1891.

Appeal from circuit court, Noble county; Joseph W. Adair, Judge.

L. W. Welker, for appellant. Zimmerman & Prickett, for appellees.

OLDS, C. J.

John Earnhart died testate. By item 3 of his last will and testament he gave to his granddaughter Harriet Cook, the only child of his deceased daughter, Susanah, $500, to be paid within one year after his death, or within one year after the death of his wife, if she survived him. It is specifically stated in said item that said legacy shall be paid by devisees to said will other than his wife, to-wit, “Nelson, James, Lewis, Thomas, and William Earnhart, Jane Wolf and Ellen Wolf, in equal shares; the share of each to be a charge upon the lands hereby devised to him or her, respectively.” Item 10 of the will is as follows: “I give and devise to my son William Earnhart for and during the term of his natural life, subject to the life-estate of my said wife therein, the following described real estate in Noble county, Indiana, to-wit: The north half of the north-west quarter, and the west half of the north-west quarter of the northeast quarter, of section thirty-four, (34,) in township thirty-four (34) north, range nine (9) east. At the death of said William Earnhart I give and devise said lands in fee-simple to the persons who would have inherited the same from the said William Earnhart had he owned the same in fee-simple at the time of his death; the same to go to said persons in the same manner and in the same proportions as though said William Earnhart had owned the same in fee-simple at the time of his death; but the provisions of this item should only vest in the said William a life-estate in said lands, and nothing more.” The appellant brings this action, setting out a copy of the will, and alleging that he owns the fee-simple title to the land described in item 10 of the will; and asking that the will be so construed as to give to him the fee-simple title to said land, and that his title be quieted to the same; making the other devisees and the executor parties defendant, alleging that they claim some interest in said land adverse to the appellants. The appellees demurred to the complaint for want of facts, which was sustained, exceptions reserved, and this appeal is prosecuted, assigning such ruling as error. It is contended that item 10 of the will is governed by the rule in Shelley's Case, and...