In re Carney's Estate

• Decision Date: 11 December 1908
• Docket Number: No. 21,372.,21,372.
• Citation: 171 Ind. 379,86 N.E. 400
• Parties: In re CARNEY'S ESTATE. MYERS v. CARNEY.
• Court: Indiana Supreme Court

171 Ind. 379

86 N.E. 400

In re CARNEY'S ESTATE.MYERS

v.CARNEY.

No. 21,372.

Supreme Court of Indiana.

Dec. 11, 1908.

Appeal from Circuit Court, Jennings County; F. M. Thompson, Judge.

Proceedings for the settlement of the final report of Henry Carney, Jr., executor of the will of Henry Carney, Sr., deceased.From a judgment adjudging that James W. Myers, executor of Elizabeth Myers, deceased, had no interest in the estate, said Myers appeals.Transferred from the Appellate Court under the provisions of Burns'Ann. St. 1908, § 1394, subdiv.2.Reversed, with directions.

For prior report, see84 N. E. 506.

Batchelor & Son and Howe & Batchelor, for appellant.Willard New, John Overmeyer, Burt New, and F. E. Littleton, for appellee.

MONTGOMERY, J.

This appear is from a judgment overruling appellant's exceptions to, and approving, the final report of appellee as executor of the will of Henry Carney, Sr., deceased.A solution of the question at issue requires a construction of the will of said decedent, which was executed January 1, 1883.That part of the will necessary to an understanding of the point involved reads as follows:

“In the name of the Benevolent Father of all, I Henry Carney, Sen., of the county of Jennings and state of Indiana, make and publish the following as my last will and testament.

“First.I bequeath and will to my wife, Nancy Carney, all of the real estate of which I die the owner, to have and to hold so long as she continue to be my widow, until her death therefor and during her natural life.

“Second.When my said wife shall cease to be my widow either by marriage or death, it is my will that my real estate shall be sold and the proceeds thereof distributed as follows, to-wit: To the children and heirs of John Carney, deceased, named as follows: Anna Carney, Cora Carney, James F. Carney, John R. Carney and Henry R. Carney, the one-eighth of the proceeds of said real estate.To the child of Lucy Barnum, deceased, to-wit: Everett Barnum, the one-eighth of the proceeds of the sale of the real estate; to Mary McNeelan, Elizabeth Myers, Thomas B. Carney, Sarah Hendricks, Henry Carney, Jr., and Emma Carney, each the undivided one-eighth of the proceeds of the sale of the said real estate.

“Third.As to the personal estate of which I may die possessed, including notes and accounts and choses in action of every kind, I will and bequeath the same to my wife so long as she continues to be my widow and if she does not marry then during her natural life coupled with the power to sell and dispose of the same absolutely in her discretion and with the further power to purchase other property with the proceeds thereof to be held by her in the same way and with the same power of disposition and at the marriage of my said wife or at her death whatever remains of my personal estate or that which has been purchased because and through the proceeds thereof, the same shall be sold and the proceeds divided as I have herein provided for the division of the proceeds arising from the sale of my real estate.

“Fourth.The portion to be paid to the heirs of John Carney hereinbefore provided shall not be paid to them until they arrive and become twenty-one years of age; that is, each shall be paid his or her part as he or she shall become twenty-one, if at that time the real and personal property shall have been sold and the proceeds collected as hereinbefore provided, if either one of the said heirs of the said John Carney shall die before reaching twenty-one years of age or before distribution, his or her portion as the case may be, shall be paid to the survivors except he or she have children, in which case the portion that would come to the parent shall go to such children.

“Fifth.If my grandson, Everett Barnum, or either one of my living children shall die before the distribution of my estate as hereinbefore provided, his or her portion shall descend as provided by law where a person dies intestate.”

The six legatees, other than grandchildren, named in item 2 of the will were children of the testator, and at the time of his death his wife, children, and grandchildren named in the will were living and constituted all his heirs at law.At the time the will was made, and also at the testator's death, all his living children were married and had a child or children living, except Emma Carney.Three of the children have died since the testator's death.Elizabeth Myers died June 16, 1894, leaving appellant, her husband, as her only heir at law, her only child, Elmer, having died June 6, 1887, subsequent to the death of testator.Mary J. McNeelan died in the year 1886 or 1887, leaving a husband and four children surviving her.Sarah J. Hendricks died during the year 1893, leaving a husband and three children surviving her.The wife of the testator, Nancy Carney, remained a widow until her death, which occurred January 26, 1905.Elizabeth Myers having died, intestate, before the death of her mother and before distribution of the estate, the immediate question for decision is whether the share bequeathed to her by this will, being under $1,000 in amount and value, descended to appellant as her sole heir or went in accordance with the laws of descent to the heirs at law of the testator.

Appellee's contention is that the will in controversy gave the testator's wife an estate for life or during widowhood, with remainder to the beneficiaries named, but contingent upon their living until the time fixed for distribution; and, in case of the death of any legatee before distribution, his or her share lapsed and passed from the testator to his heirs under the laws of descent; that, Elizabeth Myers having died before distribution, the undivided one-eighth of the estate devised and bequeathed to her was thereby divested, and descended to the heirs of the testator in accordance with the laws of descent.Appellant's contention is that, upon the death of the testator, an absolute estate in fee vested in the beneficiaries named, the enjoyment of which only was postponed until the death or marriage of the life tenant, and a sale of the estate and distribution of the proceeds; that Elizabeth Myers, having survived the testator, took a vested interest, which upon her subsequent death went to her heirs under the laws of descent, and, having died intestate, her undivided one-eighth part of the estate descended to her husband James W. Myers as her only heir at law.The estate given to the children of John Carney, deceased, is subject to certain special provisions, about which there is no controversy.The dispute grows out of the proper interpretation of the fifth item of the will in connection with its other provisions; appellant's insistence being that, in case of the death of any one of the beneficiaries referred to before distribution, his or her portion descends to his or her heirs, and appellee claiming that, in case of such death, the portion of the estate intended for such beneficiary should descend from the testator to his heirs.Opposing counsel agree upon many of the cardinal rules of construction, yet disagree widely, as stated, in their conclusions as to the meaning of this will.

It is conceded that the law favors the vesting of remainders absolutely rather than contingently, and at the earliest possible period, and presumes that words of postponementrelate to the beginning of the enjoyment, and not to the vesting of the estate.Campbell v. Bradford, 166 Ind. 451, 77 N. E. 849;Taylor v. Stephens, 165 Ind. 200, 74 N. E. 980;Gingrich v. Gingrich, 146 Ind. 227, 45 N. E. 101;Moores v. Hare, 144 Ind. 573, 43 N. E. 870;Tindall v. Miller, 143 Ind. 337, 41 N. E. 535;Fowler et al. v. Duhme, 143 Ind. 257, 42 N. E. 623;Boling v. Miller, 133 Ind. 602, 33 N. E. 354;Borgner v. Brown, 133 Ind. 391, 33 N. E. 92;Wright v. Charley, 129 Ind. 257, 28 N. E. 706;Heilman v. Heilman, 129 Ind. 59, 28 N. E. 310;Bruce v. Bissell, 119 Ind. 525, 22 N. E. 4, 12 Am. St. Rep. 436;Amos v. Amos, 117 Ind. 19, 19 N. E. 539;Hoover v. Hoover, 116 Ind. 498, 19 N. E. 468;Davidson v. Hutchins,...