Harris v. Carpenter

• Decision Date: 19 February 1887
• Citation: 109 Ind. 540,10 N.E. 422
• Parties: Harris and others v. Carpenter and others.
• Court: Indiana Supreme Court

109 Ind. 540

10 N.E. 422

Harris and others

v.Carpenter and others.

Supreme Court of Indiana.

February 19, 1887.

Appeal from superior court, Marion county.

Harris & Calkins, for appellants.

Under the will of Obadiah Harris, Laura Carpenter took a vested remainder in fee upon his death. The law abhors contingent remainders. Davidson v. Koehler, 76 Ind. 398;Moore v. Lyons, 25 Wend. 119, 4 Kent, Comm. ^*202; Doe v. Considine, 6 Wall. 458;Stilwell v. Knapper, 69 Ind. 565. Words of survivorship relate to the death of the testator. 4 Kent, Comm. 203, note a. The last clause of item 2 so relates to the death of Mr. Harris, and does not alter the interests of the devisees. Shimer v. Mann, 99 Ind. 190.

Duncan, Smith & Wilson, for appellees.

The law does not “abhor contingent remainders.” Radclyffe v. Bagshaw, 6 Durn. & E. 512; Stephens v. Evans' Adm'r, 30 Ind. 47. Our legislature has recognized them. Rev. St. Ind. 1881, § 2960. The word “heirs” in the last claused of item 2 means “children,” and thus shows the contingent character of the estate of Mrs. Carpenter. Shimer v. Mann, 99 Ind. 190, 193;Ridgeway v. Lanphear, Id. 251; 3 Greenl. Cruise, (4th Amer. Ed.) 335. The words of survivorship refer to the death of the life-tenant. Modern authorities are against construing words of survivorship as referring to the death of the testator, where any other date can be fixed. Brown v. Bigg, 7 Ves. 280; Hawk. Wills, (2d Ed.) 262; Cox v. Bird, 65 Ind. 277;Helm v. Frisbie, 59 Ind. 526;Stephens v. Evans, 30 Ind. 39;Olney v. Hull, 21 Pick. 311;Thompson v. Ludington, 104 Mass. 193;Butterfield v. Hamant, 105 Mass. 338;Taft v. Taft, 130 Mass. 461;Robertson v. Wilson, 38 N. H. 48;Hill v. Rockingham, 45 N. H. 270;Van Tilburgh v. Hollinshead, 14 N. J. Eq. 32;Slack v. Bird, 23 N. J. Eq. 238;Biddle v. Hoyt, 1 Jones. Eq. 159;Schoppert v. Giliam, 6 Rich. Eq. 83;Augustus v. Seabolt, 3 Metc. (Ky.) 155;Toothman v. Barrett, 14 W. Va. 301, 314; Cripps v. Wolcott, 4 Madd. 11; Hesketh v. Magennis, 27 Beav. 395; Thompson v. Thompson, 7 Beav. 350; Knight v. Poole, 32 Beav. 548; Gregson's Estate, 2 De Gex, J. & S. 428; Fox's Will, 35 Beav. 163; Newton v. Ayscough, 19 Ves. 534; Hoghton v. Whitgreave, 1 Jac. & W. 146; Gibbs v. Tait, 8 Sim. 132; Blewitt v. Roberts, 10 Sim. 491; Wordsworth v. Wood, 1 H. L. Cas. 129; Hearn v. Baker, 2 Kay & J. 383; Hind v. Selby, 22 Beav. 373; Atkinson v. Bartrum, 28 Beav. 219; Drakeford v. Drakeford, 33 Beav. 43; Naylor v. Robson, 34 Beav. 571; Howard v. Collins, L. R. 5 Eq. 349; Girdlestone v. Doe, 2 Sim. 225.

Even if it be true that the will gives a vested remainder to Mrs. Carpenter, it by no means follows that the subsequent clause as to her children or heirs shall be ignored. To assume that, simply because a vested remainder is given, therefore an action to quiet title may be maintained by the grantee of the life-tenant and such remainder-man, is to assume that there can be no such estate as a vested remainder defeasible upon a condition subsequent. Now, that there may be a vested remainder, defeasible upon a subsequent condition, is too elementary to admit of dispute. And that a purchaser from a life tenant and such remainder-man, prior to the time fixed for the happening of the possible contingency, cannot, prior to such time, quiet title, follows inevitably. Jones v. Miller, 13 Ind. 337;Petro v. Cassiday, Id. 289; Smith v. Hunter, 23 Ind. 580;Boone v. Tipton, 15 Ind. 270;Rush v. Rush, 40 Ind. 83;Doe v. Considine, 6 Wall. 458, 473;Edwards v. Hammond, 3 Lev. 132; Bromfield v. Crowder, 3 Bos. &. P. (N. R.) 313; Phipps v. Ackers, 9 Clark & F. 583.

NIBLACK, J.

The complaint in this case alleges that on the fourth day of September, 1871, Obadiah Harris, then being the owner of certain real estate situate in the county of Marion, in this state, upon which he resided, together with certain personal property, executed and published his will, disposing of all of his property; that the said Harris died in April, 1875, being still the owner of the property described in his said will; that said will was afterwards duly admitted to probate, the substantial part of which is as follows:

“ Item 1. I give and devise to my wife, Ruth Harris, all of the stock, household goods, furniture, provisions, farming implements, and other goods and chattels on my farm, and which I may own at the time of my decease, to be hers forever.

Item 2. I further give and devise to her, in lieu of her interest in my lands, the following part and parcel of the farm in Wayne township, Marion county, state of Indiana, on which we now reside, bounded and described as follows, to-wit, [then comes a description of the land;] she, my said wife, to have the same after my death, for and during the period of her natural life, and at her death the same shall be the property of and pass to my daughter, Laura Carpenter, the wife of Henry W. Carpenter, in fee; but if she, said Laura, be not living, then to her heirs forever.

Item 3. The remainder of my said farm, bounded and described as follows, [describing the land,] shall, after my death, be sold by my executor in such manner and on such terms as may be deemed best for the purpose of realizing the greatest sum therefor; and the proceeds arising therefrom I give and devise to my heirs, other than the said Laura and my said wife, to be distributedby my executor in the following manner; that is to say: (1) To my daughter Hannah Wilson, wife of Andrew Wilson, one-seventh part thereof; (2) to Nancy Ballard, my daughter, wife of Joseph Ballard, the one-seventh part thereof; (3) to my daughter Naomi Johnson, wife of Marion Johnson, the one-seventh part thereof; (4) to my son John Haney Harris the one-seventh thereof; (5) to my granddaughter Dora Miller one-seventh thereof; (6) to my two granddaughters, Narcissa Cuttington and Minerva Gotham, heirs of my daughter Avis, now deceased, each one-half of one-seventh thereof; (7) to the heirs of my son Lewis Harris, deceased, the one-seventh thereof, to be divided between them in the proportion provided by law in case of descent of property to them from me at the time of my death.

Item 4. After my just debts are paid, I give the rest of my property of which I may die seized, both personal and real, after paying to my wife, Ruth, the sum of one thousand dollars, ($1,000,) to my grandchildren living at the time of my death, to be divided equally between them.”

Item 5 names the executor.

The complaint further alleges that, at the time of his death, the deceased left surviving him the plaintiff Ruth Harris, who was a second wife, his daughter Laura, who at the date of the will was the wife of Henry W. Carpenter, she being the only child by such second wife; that the persons named in the third item of the will were children of the testator by former marriage, and their descendants; that Ruth and said Laura are both living, and said Laura has had two children born of her, namely, George William Carpenter, born before the date of the will, and Addison H. Carpenter, born on the sixth day of March, 1876; that the widow and Mrs. Carpenter took possession of the land described in item 2 of the will immediately upon the death of the testator, the widow having elected to take under the will; that subsequently they subdivided “a small portion of said lands” adjoining the village of Mount Jackson; that said Ruth and Laura, with the husband of the latter, sold and conveyed certain of these lots, and it is to quiet the title to such lots that the action is instituted, upon the ground that the estate of Mrs. Carpenter is claimed by many persons to be contingent upon her survivorship of her mother, and that a cloud is thereby cast upon her title to the land in which she has so joined in the sale and conveyance. Mrs. Carpenter's children above named are made the only defendants.

The court below, at special term, sustained a demurrer to the complaint, and accordingly gave judgment in favor of the defendants, and this judgment was affirmed at general term.

In argument the sufficiency of the complaint is made to turn upon the question whether Mrs. Carpenter took a vested or only contingent remainder in the land devised to her mother and to her upon the death of the testator.

Blackstone, in his Commentaries, (volume 2, p. 164,) after referring to some of the characteristics of an estate in remainder, proceeds: An estate, then, in remainder, may be defined to be an estate limited to take effect and be enjoyed after another estate is determined; as, if a man seized in fee-simple granted lands to A. for twenty years, and, after the determination of said term, then to B. and his heirs forever, here A. is tenant for...