Hackleman v. Hackleman
| Decision Date | 20 February 1925 |
| Docket Number | 11,681 |
| Citation | 146 N.E. 590,88 Ind.App. 204 |
| Parties | HACKLEMAN ET AL. v. HACKLEMAN ET AL |
| Court | Indiana Appellate Court |
Rehearing denied July 1, 1925, Reported at: 88 Ind.App. 204 at 213. Transfer denied July 18, 1928. Petition to reconsider ruling on petition to transfer denied November 15, 1928.
From Fayette Circuit Court; Raymond S. Springer, Judge.
Suit by John W. Hackleman and another against Homer T. Hackleman Homer Drennan and others to construe the will of William Hackleman and to quiet title to the real estate devised thereby. The named defendants filed a cross-complaint for partition of said real estate. From a judgment for the cross-complainants, the plaintiffs appeal.
Reversed.
George C. Florea, L. L. Broaddus and James A. Clifton, for appellants.
Hyatt L. Frost and Wiles, Springer & Roots, for appellees.
William Hackleman departed this life testate July 23, 1856, seized in fee simple of certain real estate, leaving as his only heirs at law his widow, Nancy Hackleman, aged thirty-four, and five sons, Isaac, Oliver, Sylvester, John W. and Edmund W. Hackleman, with ages ranging from six to eighteen years. Testator's will consisted of three items. By item one he provided for the payment of his debts. Items two and three are as follows:
2. "I give and bequeath to my beloved wife, Nancy, the use, improvements and income of my dwelling house, barn and outhouses, lands and appurtenances and all personal property situate in Fayette county and State of Indiana, or so much of the same as may remain after my just debts are paid, to have and to hold the same for and during her lifetime."
3. "I give and bequeath unto all my children that may be living at the death of my wife, Nancy all my property that may be remaining to be divided in equal parts among them."
The will was probated August 29, 1856, and, pursuant to its terms, Nancy Hackleman was placed in possession of the real estate, and continued in possession thereof until her death August 6, 1921. Three of testator's sons, Isaac, Oliver and Sylvester, died intestate prior to the death of Nancy Hackleman. Isaac died unmarried and without issue surviving him. Oliver died leaving surviving him his widow, Martha Hackleman, and a son, Homer T. Hackleman, one of the appellees herein. After the death of her husband, Martha Hackleman intermarried with Samuel Ludlow, and, as Martha Hackleman Ludlow, was made a party defendant in this suit. Sylvester Hackleman, at his death, left surviving him his widow, whose interest, if any, passed to her nephew, appellee Homer Drennan, prior to the death of life tenant Nancy Hackleman. Drennan is in no way related by blood to the Hackleman family. John W. Hackleman and Edmund W. Hackleman, appellants herein, are the only sons of testator who outlived their mother, Nancy Hackleman, and they, after her death, commenced this suit against appellees for the construction of the will and to quiet title. The theory of the complaint is that they became the owners in fee simple of the real estate, since they were the only children of testator who were living at the time of the death of the life tenant. Homer T. Hackleman and Homer Drennan filed an answer in denial; also a cross-complaint for partition. Similar pleadings were filed by Lincoln K. Tingley, administrator with the will annexed of the estate of Nancy Hackleman. The cross-complaints were each based upon the theory that by items two and three of the will of William Hackleman, the fee simple of the real estate devised was at his death vested absolutely in his children who were living at that time. To the cross-complaints replies in denial were filed. The cause was tried on an agreed statement of facts, and the court, on request of appellants, made a special finding of facts, and stated its conclusions of law thereon. There was a finding and judgment for cross-complainants.
This appeal presents but one question: Were the remainders created by the will of William Hackleman for his children contingent or vested? If the remainders are vested, the judgment must be affirmed. On the contrary, if they are contingent, the judgment must be reversed.
The question presented is not difficult, and we shall not make it appear difficult by an extended discussion. The language used by William Hackleman in his will is free from ambiguity. His intention as gathered from his will is not in doubt; nor does it contravene any principle of public policy or any inflexible rule of law. By item two of his will, the testator created in his "wife Nancy" a life estate in certain lands--the lands the title to which is in controversy. In that item, there is no disposition of the fee. There is no contention by any one that there is any uncertainty as to the testator's intention as expressed by item two. Having by that item carved out a life estate and vested the same in his widow, the testator by the third item of his will proceeded to devise the fee of his real estate; or, as he expresses it in his will, "all of my property that may be remaining." Clearly and definitely, and by a separate testamentary clause, he says:
"I give and bequeath unto all my children that may be living at the time of the death of my wife, Nancy, all my property that may be remaining," etc.
The devise is not to all of his children that might be living at the time of his death, and cannot be so construed, but, in words that cannot be misunderstood, he devises to those who may be living at the time of the death of his "wife Nancy." It is earnestly contended by appellee, and evidently the trial court took the same view, that the words, "that may be living at the time of the death of my wife Nancy," do not refer to a vesting in interest, that they were intended to, and do, indicate the time when, and the persons to whom, the mere right of possession was to vest. But that is not what he says. There was no occasion for him in item three to fix the time when the remaindermen should come into the right of possession. Having devised a life estate, the testator could not have vested the right of possession in another until the termination of the estate for life. If the words "that may be living at the death of my wife Nancy," are held to express the time at which the remaindermen would come into the right of possession, they are superfluous words. The words are likewise redundant if their purpose in the will is to indicate those remaindermen who would have the right of enjoyment, for that, too, was fixed by the creation of the intervening estate. If, however, the testator intended to create a contingent remainder in those of his children who would be living at the time of the death of his widow, no words need be added to the will, and none need be taken away. Lawyers and laymen alike may read and understand the testator's meaning.
But appellees argue that it must be presumed that words of postponement in a will relate to the beginning of the enjoyment, and not to the vesting of the remainder, that there is a presumption that a testator intended to dispose of his entire estate, and that the law favors the vesting of remainders absolutely, rather than at the death of the first taker. These rules are as stated by appellees, but they have no application here. They are rules for the construction of ambiguous wills. Although the law favors the vesting of estates, and looks with disfavor on the postponement of the vesting of title, nevertheless, contingent remainders are lawful, and if a testator, by unambiguous language, creates a contingent remainder, it is the duty of the court to uphold it. Stephens v. Evans' (1868), 30 Ind. 39; Watson v. Tracy (1921), 77 Ind.App. 163, 133 N.E. 411; Chapin v. Crow (1893), 147 Ill. 219, 35 N.E. 536, 37 Am. St. 213. As was said in Herron v. Stanton, Admr. (1920), 79 Ind.App. 683, 128 N.E. 363, "Courts have no more right to make wills for the dead than they have to make contracts for the living." Gibson v. Seymour (1885), 102 Ind. 485, 2 N.E. 305, 52 Am. Rep. 688.
Appellees cite the following cases: Alsman v. Walters (1914), 184 Ind. 565, 106 N.E. 879, 111 N.E. 921; Aldred v. Sylvester (1916), 184 Ind. 542, 111 N.E. 914; Busick v. Busick (1917), 65 Ind.App. 655, 115 N.E. 1025. It is contended that in principle these cases are the same as the case at bar, and must control it.
The devise under consideration in the Alsman case was in the following language:
"I give and bequeath to my son Francis M. Walters during his natural life, and after his death, to his children surviving him, in fee simple, the following tract of land," etc.
Appellee in that case urged that the remainder created by the will was contingent. The Supreme Court, in deciding that the will created a vested remainder, reached the conclusion it did by holding that the language of the will was ambiguous, and applying the established rules of construction. The holding that the language of the will was ambiguous was predicated primarily upon the fact that the testator had used the words "in fee simple" in connection with the words of devise. In discussing the question, the court in its opinion, among other things, said: ...
To continue reading
Request your trial