Foudray v. Foudray

• Decision Date: 27 October 1909
• Docket Number: No. 7,227.,7,227.
• Citation: 89 N.E. 499,44 Ind.App. 444
• Parties: FOUDRAY et al. v. FOUDRAY et al.
• Court: Indiana Appellate Court

44 Ind.App. 444

89 N.E. 499

FOUDRAY et al.

v.FOUDRAY et al.

No. 7,227.

Appellate Court of Indiana, Division No. 2.

Oct. 27, 1909.

Appeal from Circuit Court, Marion County; Henry C. Allen, Judge.

Action by Livingston D. Foudray and others against John S. Foudray and others. From a judgment for defendants, plaintiffs appeal. Reversed.George W. Galvin, Elliott & Elliott, and W. A. Reading, for appellants. Morris & Newberger and C. E. Weir, for appellee Martha E. Clark. Harding & Hovey and Omer A. Newman, for appellee Baldwin & Co.

ROBY, P. J.

Action for partition and to quiet title by Livingston D. Foudray. Martha E. Clark filed a cross-complaint, asking that her title be quieted as against the plaintiff and his mortgagees Galvin and Reading. A special finding of facts was made and conclusions of law stated thereon, and judgment rendered accordingly. Questions are discussed upon the pleading but the finding of facts is concededly correct, and the rights of the parties will therefore be determined by reference to it.

The plaintiff's mother was the owner of a part of a lot and business building on Pennsylvania street in Indianapolis, and died testate on April 12, 1895. The controversy arises upon the construction of her will. That instrument was so far as necessary to the case in hand, as follows:

“Item 1st. I give and devise to my daughter Martha E. Clark, wife of Stephen A. Clark, now of said city for and during her natural life with full power of disposition, the certain real estate situate in the County of Marion, State of Indiana, described as follows, to-wit:” (describing the lot in controversy), “together with all the privileges and appurtenances thereunto belonging, free from and clear of all liabilities, liens and encumbrances existing at my death, which, if any, shall be paid out of the residue of my estate mentioned in the last item of this will.”

“Item 3rd. At the death of said Martha E. Clark should any real or personal property hereinbefore by me devised or bequeathed to her as aforesaid, be left or remain, then such property so left or remaining I give, bequeath and devise to and to be divided among my heirs at law living at the time of the death of said Martha E. Clark, to such of my children as shall be then living, share and share alike, and to the descendants who shall be then living of any of my children then deceased the equal share their parent would be entitled to as one of my children if living at the time of the death of said Martha E. Clark, including any descendants of said Martha E. surviving her.”

“Item 7th. All the residue of my property, I give, bequeath and devise, subject to the payment of my debts (other than the expenses of my last sickness and funeral) to my children, Martha E. Clark, John S. Foudray, James E. Foudray, Edgar E. Foudray and Livingston D. Foudray equally, share and share alike, the descendants of any of them who may be deceased at my death to take the share their parent would be entitled to if living at my death.”

This instrument gave Martha E. Clark a life estate by certain and express terms with full power of disposition. It is held that in such particular case the devisee for life will not take a fee, notwithstanding the gift of a power of disposition. Mulvane v. Rude, 146 Ind. 476, 483, 45 N. E. 659. Appellant's proposition seems to be that the power of disposition applies only to the disposition of the life estate, and not generally; that it is necessary to a general power of disposition that there be an expressed purpose to be attained thereby. To give the meaning to this clause which is thus claimed would make the power...