Korf v. Gerichs
| Decision Date | 26 May 1896 |
| Docket Number | 17,776 |
| Citation | 44 N.E. 24,145 Ind. 134 |
| Parties | Korf v. Gerichs et al |
| Court | Indiana Supreme Court |
From the Warrick Circuit Court.
Affirmed.
J. E Williams and G. Palmer, for appellant.
Handy & Armstrong, for appellees.
This appeal presents the question as to the estate devised to the appellees, by the will of Henrietta Gerichs, the mother of the appellant and the appellees. By separate items she devised to each of her four children a described tract of land, employing in each instance the words: "My express will is that after my death my beloved son," or daughter, "* * shall have and own, in his name," the land described. In the item so devising to the appellant and following the description of the lot devised, were the words: "And after her demise said lots shall rest in her children's name." By a separate item, the son Henry W. was charged with an obligation to pay to his two brothers and sister several sums of money, aggregating $ 1,300.00. The appellant's contention is that, under the rule that a devise of lands generally, and without words indicating the character of the estate devised, carries but a life-estate her brothers did not take a fee in the tracts so severally devised to them, but took estates for life only.
On behalf of the appellees, it is insisted that, notwithstanding the rule stated, it is manifest from the whole will that the testator intended to devise to them in fee-simple. The rule above stated we understand to be that prevailing at common law, and that it is the law in this State, where it is not modified by statute or by other well established rules of testamentary construction. Rogers et al. v. Winklepleck et al., 143 Ind. 373, 42 N.E. 746; Ross v. Ross, 135 Ind. 367, 35 N.E. 9; Fowler v. Duhme, 143 Ind. 248, 42 N.E. 623, and cases cited.
By statute it is provided that "Every devise, in terms denoting the testator's intention to devise his entire interest in all his real or personal property, shall be construed to pass all of the estate in such property," etc. R. S. 1894, section 2737 (R. S. 1881, section 2567). While this statute does not defeat the common law rule, it implies that that rule shall not prevail as against the intention of the testator "to devise his entire interest." The rule that the testator's intention shall prevail, notwithstanding the common law, has been applied in this State. Ross v. Ross, supra; Mills v. Franklin, 128 Ind. 444, 28 N.E. 60; Morgan v. McNeeley, 126 Ind. 537, 26 N.E. 395; Patterson v. Nixon, 79 Ind. 251.
That it is the general rule for the construction of wills that the intention of the testator is of first importance, is without question. One rule of intention is that a testator will not be presumed to have intended partial intestacy, unless the language of the will compels such construction. Borgner v. Brown, 133 Ind. 391, 33 N.E. 92; Spurgeon v. Scheible, 43 Ind. 216; Cate v. Cranor, Exr., 30 Ind. 292. This rule has been applied to defeat that of the common law, above referred to in Morgan v. McNeeley, supra; Mills v. Franklin, supra.
Partial intestacy would be written upon each of the three devises to the appellees, if the appellant's contention should control. Another rule of intention is that where a devisee is charged with the payment of money, in respect to the estate in his hands, he takes a fee-simple in such estate, there being no limitation over, on the principle that he might otherwise be loser. Jackson v. Bull, 10 Johns (N. Y.), 148; Wait v. Belding, 24 Pick. (Mass.) 129; 2 Redfield Wills, 323; 2 Jarman Wills, 248, 252; Beach Wills, p. 337; 6 Am. and Eng. Ency. of Law, p. 877.
This principle was recognized in Ross v. Ross, supra, but was perhaps stated with inaccuracy, as applying to charges against the land rather than the devisee. The charges in this will against Henry W. were evidently designed to equalize all of the devisees. There is no possible construction of the words of the testator which would imply a purpose to give to any one of the appellees an estate of a different character from that given to Henry W. The words of devise are identical in every instance.
In speaking of the rule of the common law, this court said, in Roy v. Rowe, 90 Ind. 54: ...
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