OPINION
Miller, J.
This
action involves a construction of the seventh clause of the
will of William Heilman, deceased.
Several
paragraphs of complaint and answer are contained in the
record presenting the questions of its operation on real and
personal property separately, but the construction we put
upon the instrument renders it unnecessary to set out or
further describe the pleadings.
The
will is as follows:
"I
William Heilman, of Evansville, Vanderburgh county, Indiana,
of sound mind and memory, do hereby make and publish my last
will and testament, hereby revoking all other wills and
testaments heretofore by me made:
"First.
I desire that all my just debts be paid out of my estate in
the following manner: That all my outstanding accounts and
claims, and notes held by me at the time of my death, be
first used in discharging said debts.
"Second.
I give and bequeath to my son George P. Heilman
$ 10,000, in Louisville, Evansville and St. Louis
consolidated 5 per cent. railroad bonds. Should I have parted
or sold all said bonds, he is to have the market value in
cash for said ten thousand bonds, whatever that may be, at
the time of my death.
"Third.
I bequeath to my son William Heilman one thousand shares ($
50,000) of the capital stock in the Heilman Machine Works.
"Fourth.
I bequeath to my son Frederick Carl Heilman twelve hundred
shares ($ 60,000) of the capital stock of the Heilman Machine
Works.
"Fifth.
I bequeath and direct that my daughter, Mary Heilman
Rosencranz, shall have lot nineteen (19), and the adjoining
forty-six and one-quarter (46 1/4) feet of lot twenty (20) in
the lower enlargement to the city of Evansville, with all the
improvements thereon, for which she shall be charged $ 22,000
on her share of my estate.
"Sixth.
To my dear wife, Mary Jenner Heilman, I give and bequeath all
the rest of my property, real and personal, to be had and
held by her during her natural life, and so long as she
remains my unmarried widow. Should my said wife marry again,
then she shall receive from my estate the amount and portion
allowed her by law, and no more.
"Seventh.
After the death of my dear wife all my estate, excepting the
bequests herein made, shall be divided in equal shares among
all my children, and should any of my children be dead, and
have left children, then they shall be entitled to the
distributive share of their parents.
"Eighth.
Should, at any time after my death, my executor, or
executrix, find that it will be to the best interest of my
estate that any part of real estate thereto belonging be
sold, then my wife, Mary J. Heilman, together with my sons
George P. Heilman and William A. Heilman, jointly, shall have
the right to sell my real estate belonging to my estate, and
by their deed shall have the right to sell and convey the
title in fee simple of such real estate.
"Ninth. I hereby nominate and appoint
my wife, Mary J. Heilman, executrix, without bond, of this my
last will and testament."
The
appellants, who are the children of George P. Heilman, who is
a living son, and one of the residuary legatees of the
testator, claim that the remainder limited upon the
life-estate of the widow is a contingent one, which, upon the
termination of the life-estate, will vest in such children of
such testator as may be then living, and the children of any
child who may have died after the death of the testator, and
before
the termination of the life-estate. The appellee, who, since
the death of the testator, has purchased specific portions of
the legacy of George P. Heilman, contends that the legacy to
him became vested at the death of the testator, and asks that
her title to the same be quieted as against his children.
If the
interest of George P. Heilman in the residuum was a vested
one, he had a right to sell and transfer it to the appellee,
and vest in her a good title to the same. Bunnell v.
Bunnell, 73 Ind. 163; Fay v.
Sylvester, 2 Gray, 171.
We do
not think it necessary to examine the distinction to be found
in the books between the rules of construction of wills
relating to personal property and those where real estate
alone is concerned. It may well be doubted whether such
distinction longer exists in this State, the paramount object
in either case being to arrive at, as far as possible, the
intention of the testator. In referring to a similar
distinction claimed, this court, in Holbrook v.
McCleary, 79 Ind. 167, says: "It is certain, we
think, that the reason thus given for the supposed
distinction has long since ceased to exist, if it ever
existed, in this State. Here, the testator's will of
personal estate must be executed with precisely the same
solemnity and formality as the will devising real estate; and
there is no perceptible or practical difference in the
operation of a will upon personal estate and upon real
estate."
In any
event, inasmuch as the same clause of the will
operates on both real and personal property, if the bequest
of real estate vests, the same construction will be applied
to the personal estate. 2 Redfield Wills, 244; 2 Jarman
Wills, 479 n. g; Jull v. Jacobs, L.
R. 3 Ch. Div. 703; Farmer v. Francis,
2 S. & St. 505; Tapscott v. Newcombe, 6
Jur. 755; James v. Lord Wynford, 1 Sm.
& Gif. 40.
The
devise to the widow, contained in the sixth clause of the
will, gives to her a life-estate in all the property of the
testator not specifically devised. By the seventh clause the
ulterior interest in the property, upon the determination of
the intervening estate, is given to or divided among his
children, but should any of his children be dead leaving
children, they are to take the distributive share of the
parent.
The
distinction between vested and contingent estates is thus
given in 2 Redfield Wills, 218, 6: "From a careful
examination of this subject, it will be found, we think, that
the question of vesting, or remaining contingent, depends
upon whether the condition of the intervening estate
determining, and the estate over taking effect, is one that
must happen some time, and so as to give effect at some
period to the second estate, or may never happen. If the
former, then the second estate in remainder will always be
regarded as vested. But in every case where the
existence of the secondary estate is made dependent
upon a contingency which may never happen, or never happen so
as to allow of the vesting of the secondary estate, then the
devise or bequest must be regarded as contingent, as well in
its character as in regard to the time when it will come into
operation."
The
law favors the vesting of estates and will construe the terms
of a will as creating a vested estate, if possible.
Harris v. Carpenter, 109 Ind. 540, 10 N.E.
422. In Amos v. Amos, 117 Ind. 37, 19 N.E.
543, it is said: "We affirm, as an established
principle, that the law not only favors the vesting of
remainders, but it also presumes that words postponing the
estate relate to the beginning of the enjoyment of the
remainder, and not to the vesting of that
estate. Davidson v. Koehler, 76 Ind. 398;
Davidson v. Bates, 111 Ind. 391, 12 N.E.
687; Davidson v. Hutchins, 112 Ind. 322, 13
N.E. 106."
In
Bruce v. Bissell, 119 Ind. 525, 22 N.E. 4
this language is used: "It is familiar law that,...
