Hoke v. Jackman

• Decision Date: 15 December 1914
• Docket Number: No. 22555.,22555.
• Citation: 182 Ind. 536,107 N.E. 65
• Parties: HOKE et al. v. JACKMAN et al.
• Court: Indiana Supreme Court

182 Ind. 536

107 N.E. 65

HOKE et al.

v.JACKMAN et al.

No. 22555.

Supreme Court of Indiana.

Dec. 15, 1914.

Appeal from Circuit Court, Wells County; Wm. H. Eichhorn, Judge.

Suit by Clifford Jackman, as executor of the will of Elizabeth J. Best, deceased, against Harta Hoke and others, to procure a construction of the will. From a decree construing the will, Hoke and others appeal. Affirmed.

C. K. Lucas, Geo, M. Eberhart, C. W. Watkins, and J. W. Moffett, all of Huntington, for appellants. Emmett O. King, of Huntington, and Abram Simmons and Frank C. Dailey, both of Bluffton, for appellees.

COX, J.

This was a proceeding instituted in the lower court by appellee Jackman, executor of the last will of Elizabeth J. Best, deceased, to procure a construction of the will.

After providing for the payment of funeral expenses and such debts as might be left by the testator, the will provided that the executor should sell all of the real estate of the testatrix, and that the amount derived therefrom together with all of her remaining personal property should be divided as provided in separate following items of the will. By the third item $1,000 was set aside as a trust fund to insure the care of a family cemetery lot. Over this item there is no controversy. The proper construction of the following items of the will was sought.

“Fourth. I hereby give and bequeath to Harmon W. Stults, Catherine A. Sprinkle and David C. Stults, the sum of one thousand dollars ($1000.00) each.

Fifth. I give and bequeath to Amanda J. Howenstine the sum of nine hundred dollars ($900.00).

Sixth. I give and bequeath to Mary Elizabeth Wagner, Elizabeth J. Best Dailey, of Omaha, Nebraska, Emma J. Stults, Mertis Howenstine, Nota Howenstine, Harta Hoke and Bessie Carnes, the sum of five hundred dollars ($500.00) each.

Seventh. In the event there is any money left after all expenses and the foregoing bequests have been paid, then and in that event the surplus is to be equally divided among all the heirs named.

Eighth. In the event that any of the heirs named in this, my last will and testament, contest in any manner the provisions of this will then and in that event such heir or heirs shall receive nothing and the share of such heir or heirs shall be divided equally among the balance named and among those who do not contest this will.”

The doubt as to the proper distribution of the estate, which it was sought to have resolved, involved only the residuary estate disposed of by item seven of the will. The lower court found the intention of the testatrix to be that the legatees named in the fourth, fifth, and sixth items should take the residuary estate in equal portions.

It is to be noted that there is not, within the four corners of the will, anything to indicate that any of those to whom bequests were made by items fourth, fifth and sixth of it sustained to the testatrix any relation other than that of legatees. No relation of kinship appears. But upon the issues formed in the proceeding the court, in response to requests by both parties, found the facts specially, and, from this finding, it appears that the legatees named in the fourth and fifth items of the will were brothers and sisters of the testatrix, that of the legatees named in the sixth item Mary Elizabeth Wagner was a daughter of Catherine A. Sprinkle, legatee named in the fourth item, Mertis Howenstine and Nota Howenstine were respectively son and daughter of Amanda J. Howenstine, legatee named in the fifth item, Bessie Carnes was a daughter of David C. Stults, legatee named in the fourth item, Harta Hoke was the daughter of a brother of testatrix whose death had preceded that of testatrix, Emma J. Stults was a first cousin of testatrix, and Elizabeth J. Best Dailey was a cousin in the sixth degree to testatrix, and was her namesake. At the time her will was made, and at the time of her death, Mary J. Best was a widow with neither a child, nor the descendant of any child, nor father or mother living. It appears, therefore, that among those named as legatees, the brothers and sisters of testatrix named in the fourth and fifth items of the will and Harta Hoke mentioned in the sixth item, the daughter of a brother of testatrix whose death had occurred before hers, would have shared in the distribution of her estate if she had died intestate. None of the others named as legatees would have been entitled to a share under the statute governing the descent and distribution of the estates of persons who die intestate in this state. Burns 1914, § 2993. It also appears that there survived the testatrix another niece and another nephew who were the children of a brother and a sister of hers whose death had preceded hers. Appellants' position is that the primary legal meaning of the word “heirs” as used in the will being sensible and consistent with these extrinsic facts and circumstances that meaning must be given to it.

There are certain settled rules which have been established for the correct interpretation of wills, the application of which it is apparent that appellants were invoking for the overthrow of the lower court's interpretation of the will before us. The following has been long recognized as a correct statement of these rules:

[1]“A testator is always presumed to use the words in which he expresses himself according to their strict and primary acceptation, unless from the context of the will it appears that he has used them in a different sense, in which case the sense in which he thus appears to have used them will be the sense in which they are to be construed.

[2]Where there is nothing in the context of the will from which it is apparent that a testator has used the words in which he has expressed himself in any other than in their strict and primary sense, and where his words so interpreted are sensible with reference to extrinsic circumstances, it is an inflexible rule of construction that the words of the will shall be interpreted in their strict and primary sense, and in no other, although they may be capable of some popular or secondary interpretation, and although the most conclusive evidence of intention to use them in such popular or secondary sense be tendered.

[3]Where there is nothing in the context of a will from which it is apparent that a testator has used the words in which he has expressed himself in any other than in their strict and primary sense, but his words, so interpreted, are insensible with reference to extrinsic circumstances, a court of law may look into the extrinsic circumstances of the case to see whether the meaning of the words be sensible in any popular or secondary sense, of which, with reference to these circumstances, they are capable.” Wigram on Wills (O'Hara, 2d Am. Ed.) pp. 55 and 56; Daugherty v. Rogers (1889) 119 Ind. 254, 20 N. E. 779, 3 L. R. A. 847.

In its broad primary legal sense, the word “heirs” means those who are entitled by law to succeed to the property of a decedent if no will is left. A secondary, and more general, meaning of the word is those upon whom property of any kind devolves on the death of another, either by law or will. Century Dictionary, p. 2773; 40 Cyc. 1459, 1461.

[5] It appears to be the theory of ...