Granger v. Granger

• Citation: 44 N.E. 189,147 Ind. 95
• Decision Date: 26 May 1896
• Docket Number: 17,706
• Parties: Granger v. Granger et al
• Court: Indiana Supreme Court

44 N.E. 189

147 Ind. 95

Granger v. Granger et al

No. 17,706

Supreme Court of Indiana

May 26, 1896

Rehearing Denied Feb. 19, 1897, Reported at: 147 Ind. 95 at 101.

From the Vanderburgh Superior Court.

Affirmed.

J. E Williamson, B. K. Elliott, W. F. Elliott and J. R. Wilson for appellant.

J. G. Owen, H. A. Mattison and Frank B. Posey, for appellees.

OPINION

Howard, J.

Ira P. Granger died seized of the real estate here in controversy. The third item of his will reads as follows:

"Third. I give and bequeath to my third son, Edwin Granger, one-fourth in value of all the real estate of which I may die seized, to have and hold the same during the full term of his natural life, and after his death I devise and bequeath the same to the heirs of his body by him begotten, if there be any such heirs him surviving, and should he have no heirs of his body by him begotten him surviving, then I give and devise the said real estate to him hereinbefore devised to the said Samuel and Sumner and to my granddaughter, Effie Pharr, in equal proportions in fee, provided, nevertheless, that the estate so taken by the said Effie shall be liable to this condition, that should said Effie die without leaving any heir of her body by her begotten and delivered and surviving her, then her share of said real estate should be and become the property of the said Samuel and Sumner absolutely in fee. And I also give and devise to the said Edwin one-fourth of all the personal property of which I may die seized absolutely."

Edwin Granger died after the death of his father, the testator, and left no children surviving, but left the appellant as his widow. The appellees consist of Sumner Granger and the heirs of Samuel Granger, and Effie Pharr.

The appellant claims that, under the clause of the will above set out, her former husband, Edwin Granger, acquired a fee simple in the land in dispute, which has descended to her as his widow.

The appellees claim that under the will Edwin Granger had only a life estate in the land; and that on his death, without children surviving, the land fell to them.

The appellant contends that the rule in Shelley's Case applies to the devise made to Edwin Granger, the word heirs being used in its legal sense; while the appellees contend that the rule in Shelley's Case has no application here, the word heirs being used in the sense of children, as shown by the context.

In its strict legal sense, "heirs" signifies those upon whom the law casts the inheritance of real estate. They are those in the line of descent from the ancestors; and may be grandchildren, or even more remote descendants, as well as children.

The word "heirs," as said by Mr. Anderson (Law Dict., p. 508), "may be used in deeds, as it is often used in wills, for 'children,' or 'issue,' or 'grandchildren.'" "'Issue,'" says the same author (p. 570), "means, prima facie, the same as 'heirs of the body,' and in general is to be construed as a word of limitation. But this construction will give way, if there be on the face of the instrument sufficient to show that the word was intended to have less extended meaning, and to be applied only to children or to descendents of a particular class or at a particular time."

So it was said in Allen v. Craft, 109 Ind. 476, 9 N.E. 919: "Strong as is the word 'heirs,' it may be read to mean children, if the context decisively shows that it was employed in that sense by the testator." Citing Ridgeway v. Lanphear, 99 Ind. 251; Shimer v. Mann, 99 Ind. 190; 50 Am. Rep. 82; Hadlock v. Gray, 104 Ind. 596, 4 N.E. 167.

It therefore becomes necessary to determine from the will what meaning the testator in this case attached to the word "heirs," or "heirs of his body," in the item of said will above set out. If by the words used he intended to designate those persons who in law would be entitled to inherit property from Edwin Granger, as being in the line of descent from him; then the estate given would be a fee simple. If by the words used, however, the testator meant to designate Edwin's children simply, then the estate given him by the will would be, as the words also indicate, a life estate only, remainder to such children.

To arrive at the testator's meaning it is not enough to consider only the words to be interpreted. The whole context, all the words of the will, or of the item thereof under consideration, must be considered, in order to arrive at the real intention.

The devise of the estate is, first, to Edwin Granger, "to have and hold the same during the full term of his natural life." This, taken by itself, and without reference to other words in the will, is plainly a life estate. The next clause reads: "And after his death I devise and bequeath the same to the heirs of his body by him begotten, if there be any such heirs him surviving." These words were evidently intended as a devise of the remainder, after the life estate, to the persons named; and the rules for the interpretation of wills require that the intention so manifested be given effect, provided this can be done consistently with law. The third clause of the devise, and the last that we need consider, so far as this interpretation is concerned, is the following: "And should he have no heirs of his body by him begotten him surviving, then I give and devise the said real estate to him hereinbefore devised to the said Samuel and Sumner and to my granddaughter, Effie Pharr, in equal proportions in fee." By these words the testator undoubtedly meant that on the death of Edwin Granger, leaving "no heirs of his body by him begotten him surviving," the remainder should go to Samuel, Sumner and Effie.

What then did the testator mean when speaking of his son Edwin and using the words, "heirs of his body by him begotten him surviving?" The appellees contend that in using these words the testator referred to children who should be begotten by his son Edwin and who should survive him. It must be said that such meaning seems manifest. It is true that the words "heirs of his body," standing by themselves,...