Johnson v. Hicks

• Decision Date: 14 October 1952
• Docket Number: No. 28710,28710
• Citation: 108 N.E.2d 129,231 Ind. 353
• Parties: JOHNSON et al. v. HICKS.
• Court: Indiana Supreme Court

Page 129

108 N.E.2d 129

231 Ind. 353

JOHNSON et al. v. HICKS.

No. 28710.

Supreme Court of Indiana.

Oct. 14, 1952.

C. L. Howard, Gary, for appellants.

Anderson, Hicks & Anderson, F. L. Anderson,

Anderson, Hicks & Anderson, F. L. Anderson, Sr., F. L. Anderson, Jr., Gary, for appellee.

EMMERT, Judge.

This appeal comes to this court by way of transfer from the Appellate Court under § 4-209, Burns' 1946 Replacement, for failure of four judges of said court to concur. Zebedee Dallas Hicks died a resident of Lake County, Indiana, February 20, 1947, leaving surviving him his widow, Georgia Ann Hicks, but no children or descendants of deceased children. The widow, not being advised of any will, qualified as administratrix. A will executed by the decedent was in the possession of his brother-in-law, who delivered it to the administratrix, and she, on advice of counsel, presented the will for probate, and the same was probated on the 7th day of March, 1947. The testator, by Item II of his will, gave all of his property, real, personal and mixed, to his wife Georgia A. Hicks for life 'with such exceptions to follow.' Item VI of the will was as follows:

'I also bequeath and devise to my wife to have and to hold and receive all income from the following described property during her natural life, located at 6722 Champlain Avenue, Cook County, Chicago, Illinois, and such income that may be devised from the property inherited from my parents, located at Wedowee, Alabama, during her natural life.'

The controversy here arises out of the proper construction of Item VII which is as follows:

'As to our home place, known as 2456 Jefferson Street, Lake County, Gary, Indiana, which is by enitrity, in both of our names, to keep and to hold for her benefit and use, during her natural life and thereafter, or hereby dispose of the same as other property after her death, and which can be done as to this part, as in the case of Young v. Biehl, 78 N.E. 406, 144 Ind. 1 [166 Ind. 357, 77 N.E. 406].'

There were fifteen items in the will, but as we construe other items for not copied herein, there is nothing in them which affects the construction to be given Item VII. The real estate devised by Item VII was held by the testator and Georgia Ann Hicks as tenants by the entirety under a warranty deed executed to them the 13th day of October, 1931.

The executrix filed a complaint to construe the will making herself individually and other beneficiaries adverse parties. The widow, individually, filed an answer which asserted in substance that Item VII did not affect her title as surviving tenant by the entirety, and she filed also a cross-complaint to quiet title in her. Other beneficiaries of the will by their pleadings asserted she was bound by the doctrine of equitable election, and that she only had a life estate in the home residence. The trial court filed a special finding of facts and conclusions of law. Special finding No. 4 stated, 'The Court further finds that the petitioner has performed no act or omitted to do any act which would divest her title in the real estate in question,' and concluded that Georgia Ann Hicks was the owner in fee simple of said real estate and that her title thereto should be quieted. The error assigned here is the overruling of appellants' motion for a new trial.

The widow filed no statutory election to take under the law as provided by § 6-2332, Burns' 1933, and § 6-2334, Burns' 1933 (Supplement). ¹

The common law rule that a general devise of real estate without designating the interest to be taken by the devisee transferred only a life estate was changed by the enactment of § 7-704, Burns' 1933, where the gift denoted the testator's intention to devise his entire interest. ² Quilliam v. Union Trust Co., 1924, 194 Ind. 521, 142 N.E. 214; Burrell v. Jean, 1925, 196 Ind. 187, 146 N.E. 754. However, by Ch. 175 of the 1929 Acts the common-law rule was again changed as to wills by § 1 thereof which provided as follows: 'In every disposition by will of real estate situate in Indiana, the intention of the testator as gathered from the will as respects the quality of the estate intended to be devised shall control, but, unless, from the will, a different intent of the testator is disclosed, the devisee shall take the fee-simple title in the land devised.' Section 7-705, Burns' 1933. ³ As we construe this section, it completely abolished the common-law rule, and a general devise without more passes a fee-simple title to real estate in Indiana, subject to having the fee-simple interest reduced by other language in the instrument clearly showing an intention to reduce the interest given. ⁴

In Ragsdale v. Robinson, 1942, 219 Ind. 335, 38 N.E.2d 570, this court decided that a will which did not clearly attempt to devise real estate held by the testator and his wife as tenants by the entireties would not be construed to affect such real estate so that the doctrine of equitable election could be invoked under the rule in Young v. Biehl, 1906, 166 Ind. 357, 77 N.E. 406; Moore, Ex'r v. Baker, 1892, 4 Ind.App. 115, 30 N.E. 629; see also 156 A.L.R. 820; Miller v. Smith, 1929, 79 Ind.App. 1, 132 N.E. 607; Hartwig, Adm'r v. Schiefer, 1897, 147 Ind. 64, 46 N.E. 75; Cameron v. Parish, 1900, 155 Ind. 329, 57 N.E. 547. In construing the will in the Ragsdale case, supra [219 Ind. 335, 38 N.E.2d 572], this court cited with approval the rule of construction stated in 2 Pomeroy, Equity Jurisprudence (5th Ed.) § 472, p. 339, as follows: 'The first and fundamental rule, of which all the others are little more than corollaries, is: In order to create the necessity for an election, there must appear upon the face of the will itself, or of the other instrument of donation, a clear, unmistakable intention, or the part of the testator or other donor, to dispose of property which is in fact not his own.' ⁵ The intention of the testator to dispose of property not his own 'must be made to clearly appear beyond a reasonable doubt from the will itself.' Cameron v. Parish, 1900, 155 Ind. 329, 338, 57 N.E. 547, 551, supra.

If the testator had been the sole owner of the fee-simple title to the home place, the gift thereof to his wife 'to keep and to hold for her benefit and use during her natural life and thereafter, or hereby dispose of the same as other property after her death,' clearly would have conveyed the fee-simple title under § 7-705, Burns' 1933. Where an interest in real estate is given in clear and decisive terms, such interest will not be cut down by subsequent provisions that are not as clear and decisive as the prior words giving the interest or estate. Bailey v. Samger, 1886, 108 Ind. 264, 268, 9 N.E. 159; Ross v. Clore, 1948, 225 Ind. 597, 599, 76 N.E.2d 839; Martin v. Raff, 1944, 114 Ind.App. 507, 52 N.E.2d 839. The last clause of Item VII stating, 'and which can be done as to this part, as in the case of Young v. Biehl, 78 N.E. 406, 144 Ind. 1, [166 Ind. 357, 77 N.E. 406]' may have meant something to the testator,...