Hoover v. Hoover

• Decision Date: 11 January 1888
• Docket Number: 14,260
• Citation: 19 N.E. 468,116 Ind. 498
• Parties: Hoover et al. v. Hoover
• Court: Indiana Supreme Court

19 N.E. 468

116 Ind. 498

Hoover et al. v. Hoover

No. 14,260

Supreme Court of Indiana

January 11, 1888

From the Marion Circuit Court.

The judgment is affirmed, with costs.

J. S Duncan, C. W. Smith and J. R. Wilson, for appellants.

W. N Harding and A. R. Hovey, for appellee.

OPINION

Mitchell, J.

The only question presented for consideration in this case involves the construction of the second clause of the last will and testament of Daniel Hoover, late of Marion county deceased. By the first clause of his will the testator bequeathed all of his personal goods and chattels to his "beloved wife, Elizabeth Hoover, to be hers for and during the period of her natural life." The second clause is in the following language: "Item 2. I further give and devise to her (his wife Elizabeth), all my real estate, which consists of the farm we now live on, in Wayne township, Marion county, State of Indiana, to be hers for and during her natural life, and, at her death, said real estate to pass in fee simple, in equal portions, to my son, Andrew Hoover, and my daughter, Hattie. The east half of said farm to go to my son, Andrew, if he be living, and if he be dead, then to his widow until her death or marriage, and at her death or marriage, then to go to his heirs, and if there be no heirs living, then said land shall pass to the heirs of Daniel Hoover. The west half of said farm, at the decease of my wife, shall pass to and be the property of my daughter, Hattie, she to have and to hold the same forever, and at her death to her heirs, or, if she has no heirs, to be disposed of by her as she desires."

The testator died on the 12th day of May, 1882, leaving as heirs, surviving devisees and legatees, his widow, Elizabeth Hoover, his son and daughter, Andrew P. and Hattie Hoover, and one other child for whom provision was made in the will. At the time of the testator's death, Andrew P. Hoover had a wife and two children, who are still in life.

The widow elected to take under the will, which had been duly admitted to probate. Afterwards, on the 20th day of January, 1888, she conveyed to Andrew P. Hoover all her interest and estate in a portion of the land so devised to him as above. The latter subsequently instituted this suit, making his mother, wife and children, and others, parties, alleging in his complaint that the defendants were asserting some claim to the land, and asking as relief that his title to the real estate devised by the item of the will above set out should be quieted in him.

The plaintiff had a judgment and decree below according to the prayer of his complaint, and to reverse this judgment this appeal is prosecuted.

On the one hand it is contended, in effect, that by the devise above set out, Andrew P. Hoover, immediately upon the death of the testator, took an estate in fee simple in the east half of the farm described in the will, subject only to the life-estate of his mother, the estate so taken being, as is claimed, a vested remainder.

In opposition to this theory the appellant contends that the devise created for Andrew P. Hoover a contingent remainder,...