Fowler v. Duhme

• Decision Date: 10 January 1896
• Docket Number: 16,713
• Citation: 42 N.E. 623,143 Ind. 248
• Parties: Fowler et al. v. Duhme et al
• Court: Indiana Supreme Court

42 N.E. 623

143 Ind. 248

Fowler et al. v. Duhme et al

No. 16,713

Supreme Court of Indiana

January 10, 1896

From the White Circuit Court.

The judgment of the lower court is affirmed.

Stuart Bros. & Hammond, Sellers & Uhl and Winter & Elam for appellants.

E. W Kittredge, A. C. Harris, Gould & Eldridge and L. A. Cox for appellees.

OPINION

Hackney, C. J.

On the 29th day of July, 1884, Moses Fowler, then sixty-nine years of age, was possessed of considerable wealth, consisting of near 18,000 acres of farm lands in Benton county, 2,000 acres in the counties of Tippecanoe and White, between 900 and 1,000 lots in the town of Fowler, city property in Lafayette, and personal property of more than $ 850,000. He and his wife, the appellant Eliza Fowler, had become estranged, and were living apart. His then living children were the appellant James M. Fowler, a married man more than forty years of age, and the father of children, Annis E. Chase, a married daughter, whose only child was the appellee, Moses Fowler Chase, then but six years of age, and the appellee, Ophelia M. Fowler, now Duhme, then being twenty-nine years of age, and unmarried.

On that day, said Moses Fowler executed his last will by which he disposed of his entire estate. Thereafter the said Annis E. Chase departed this life, leaving as her only heirs at law, her said son, and the appellee, Frederick S. Chase, her husband. After the death of said Annis E. Chase, the said Moses Fowler executed a codicil to said will, which will and codicil were as follows:

"I, Moses Fowler, of the city of Lafayette, Tippecanoe county, Indiana, being of sound mind and disposing memory, but realizing the uncertainties of life, do make and publish this, my last will and testament, hereby revoking all former wills by me at any time made.

"1. I direct that all my just debts and funeral expenses be paid by my executors.

"2. I give, devise and bequeath to my wife, Eliza Fowler, and to her heirs forever, the undivided one-third in value of all the real estate, wheresoever situate, of which I may die seized or possessed.

"I also give and bequeath to my said wife, absolutely and forever, the sum of $ 5,000.

"I have executed title bonds for the conveyance of certain lots or tracts of land which I have sold at what I deemed a fair consideration. Should my said wife, when such conveyances are required to be made, join therein, and release her interest in all real estate which I may have thus sold, to the several purchasers, then I direct that she be paid by my executors, in addition to the said $ 5,000, the full one-third of the consideration or purchase-money received by me, or my representatives, for and on account of the sale of each of said lots or tracts of land, together with interest thereon at six per cent. from the time of its payment.

"3. I give, devise and bequeath the remaining undivided two-thirds in value of all my real estate, wheresoever situate, to my three children, James M. Fowler, Annis E. Chase and Ophelia M. Fowler, share and share alike, in equal portions, and to their respective heirs forever, subject to the following conditions, to-wit:

"(a). In the event of the death of any of my said children without lawful issue living at the time of the death of such child, then the share of such deceased child shall vest in, and become the absolute property in fee simple, in equal portions, of such of my said children as shall then be living, and the living descendants of such, if any, as may then be dead, the descendants of any deceased child taking, between them, the share which, if living, would have vested in their father or mother.

"(b). No part of the real estate situate in Benton county, Indiana, and which by this item of my will is devised to my three children, as aforesaid, or any interest therein, shall be sold or alienated by my said children, or any of them, or their heirs, for the period of twenty-five years from and after the date of the execution of this my will.

"I impose this restriction, because, in my judgment, said real estate properly managed and cultivated is the best form of investment my children can have.

"4. I give, devise and bequeath all the residue of my property, personal and mixed, of every kind and description whatsoever, and wheresoever situate, not hereinbefore disposed of, to my three children, James M. Fowler, Annis E. Chase, and Ophelia M. Fowler, or to such of them as may survive me, and to their respective heirs forever, in equal portions, provided, however, that in case of the decease of any of my said children before me, the share of such deceased child shall go to his or her lawful issue, if any there be, living at the time of my decease.

"5. In any division or partition of the real estate which may be made among my said children, I direct that the one hundred and twenty acres of land in Tippecanoe county, known as the High Gap farm, be set off as part of the portion of my son, James M. Fowler, if it can be done without prejudice to the others.

"6. I hereby constitute and appoint my friends, Brown Brockenbrough and James M. Reynolds, of Tippecanoe county, Indiana, executors of this my last will and testament.

"In testimony whereof, I have hereunto set my hand and seal, this 29th day of July, 1884.

M. Fowler. [Seal].

"Signed and acknowledged by said Moses Fowler as his last will and testament in our presence, and signed by us at his request in his presence.

Charles B. Phelps,

W. DeWitt Wallace.

"I, Moses Fowler, by way of codicil to my last will and testament above written, hereby give and devise in fee simple, to my grandson, Moses Fowler Chase, the share in my real estate which by my said will was devised to my daughter, Annis E. Chase, now deceased, he taking the same subject to the same limitations and restrictions which my said daughter, Annis E., his mother, would have taken the same under my said will had she survived me, it being my will that my said grandson shall take the same share in my real estate as well as in my personal property, which his mother would have taken under said will had she been living at my death.

"Furthermore, I revoke the appointment of James M. Reynolds as one of my executors, and in his place I appoint as one of my executors, my son, James M. Fowler, who with Brown Brockenbrough, shall constitute my sole executors.

"Witness my hand this 1st day of June, 1888.

M. Fowler.

"Signed and acknowledged by said Moses Fowler as a codicil to his last will and testament, in our presence and signed by us at his request, in his presence, and in the presence of each other.

Charles B. Phelps.

W. DeWitt Wallace."

Moses Fowler died on the 20th day of August, 1889, and said Eliza Fowler, as his widow, James M. Fowler, his son, Ophelia Fowler Duhme, his daughter, then married, and Moses Fowler Chase, his grandson, survived him as his only heirs at law.

The will and codicil were duly probated, and said widow elected to reject the provision made for her by said will, and to take her interest in said estate as provided by law. Following the probating of the will, and said election by the widow, she, said Eliza Fowler, instituted a proceeding to contest and set aside said will, which proceeding was certified to, and became pending in the Circuit Court of the United States for the district of Indiana. At that time various disagreements existed between the devisees, and counsel representing their interests, as to the proper construction of said will, as to the ownership of various valuable properties, the legal title to which was in James M. Fowler as to parts, and in Frederick S. Chase as to parts, the equitable title in which, it was claimed by some, was in said Moses Fowler; the legal title to parts being in said Moses Fowler, and the equitable title claimed by certain of the devisees; as to numerous gifts and advancements to the testators' children, and other questions threatening the peace, good will and financial interests of the members of the testator's family. With these disagreements pending, suit was instituted for partition. At this point a compromise was effected, by which all of the disputed questions, excepting that as to the construction of the will, were amicably adjusted, said suit to contest the will was dismissed, partition was had, the widow was given the fee in one-third of the real estate, $ 15,000 of the personalty, and an annuity payable by James M. Fowler, Ophelia Fowler Duhme and Moses Fowler Chase, and the two children and the grandchild were given each the two-ninths, in value of the real estate, and a like proportion of the personal, after deducting and crediting to the various legatees certain sums agreed upon. In this settlement the adults for themselves, and said grandson by his guardian, upon the order of the circuit court having jurisdiction, concurred. There yet remained a question as to the character of title, which, by the provisions of the will, the said James M. Fowler, Ophelia Fowler Duhme, and Moses Fowler Chase, obtained and held in the lands so set off to them in partition, said question arising upon the construction of clause a, item three, of the will as above set forth. It was insisted by some that the death, in said clause referred to, was a death during the life of the testator, while by others it was maintained that such death was intended by the testator to mean a death after his death. The former proposition was agreed to, as a part of said family settlement, by all of the devisees, excepting said grandson, whose guardian was denied the right, by said circuit court, to join in that part of said settlement.

Thereupon this suit was instituted by Ophelia Fowler Duhme and her husband against James M. Fowler, Eva G. Fowler (his...