Lantz v. Pence

• Decision Date: 20 May 1957
• Docket Number: No. 18879,18879
• Citation: 142 N.E.2d 456,127 Ind.App. 620
• Parties: Velva LANTZ and Vera R. Myers, Appellants, v. Fern J. PENCE (Deceased), L. G. Juday, as Executor of the Last Will and Testament of Fern J. Pence, Deceased, L. G. Juday, Appellees.
• Court: Indiana Appellate Court

Page 456

142 N.E.2d 456

127 Ind.App. 620

Velva LANTZ and Vera R. Myers, Appellants, v. Fern J. PENCE (Deceased), L. G. Juday, as Executor of the Last Will and Testament of Fern J. Pence Deceased, L. G. Juday, Appellees.

No. 18879.

Appellate Court of Indiana, In Banc.

May 20, 1957.

Concurring Opinion May 23, 1957.

Rehearing Denied June 26, 1957.

James A. Simpson, Goshen, for appellant.

Carl L. Chattin, Goshen, for appellee.

CRUMPACKER, Judge.

The appellants were the plaintiffs below. Their suit is to quiet title to certain lands in Elkhart County, Indiana, against the adverse claim thereto of Fern J. Pence who died pending the litigation, whereupon L. G. Juday, both as executor of her will and as the sole beneficiary thereof, was substituted as party defendant. The decision of the court was against the appellants and the judgment is that they take nothing by their complaint. The case was tried upon the following agreed statement of facts 'During his lifetime, one John A. Pence became the owner of certain real estate involved in this proceeding, together with other lands, in Elkhart County, Indiana. John A. Pence died testate on April 13, 1918, seized of this same real estate. He left a last will and testament disposing of said lands under Item 2 thereof which reads as follows:

'Item 2. All of the residue of my estate, be the same personal property, real estate or mixed, I will, devise and bequeath as follows:

"(a) Unto my beloved daughter, Pearl L. Darr, the undivided one half (1/2) of said residue in fee simple. If, at my death my said daughter should not survive me, then I will, devise and bequeath the said One Half (1/2) of said residue of my estate to her child or children, share and share alike.

"(b) The other one half (1/2) of the residue of my estate, I will, devise and bequeath to my son, Samuel O. Pence, he to have the rents, profits and income thereof during the period of time that he and his present wife, Fern Pence, shall sustain to each other the relationship of husband and wife, and thereafter, if my said son shall survive such relationship, then over to him in fee absolute; If, however, his wife, Fern Pence, should survive him sustaining to him the relationship of wife, then on his death I will, devise and bequeath said remaining one half of the said residue of my estate over in fee to my said daughter, Pearl L. Darr, and in the event of her death at said time, over in fee to her child or children, share and share alike.'

'Said will was duly admitted to probate in the Elkhart Circuit Court and on June 9, 1919, Pearl L. Darr, in consideration of a partition of their common interests, executed a deed to Samuel O. Pence conveying her interest in the land in controversy to him subject to the same conditions and provisions as attached to his inheritance under his father's will.

'Samuel O. Pence and his wife Fern were divorced on November 5, 1921, and on January 19, 1922, he brought an action in the Elkhart Circuit Court to quiet his title to the lands described in said partition deed which are the identical lands involved in this litigation, excepting a one and one-half (1 1/2) acre tract of land out of the northeast corner of the lands described in this action, which had been conveyed to Samuel O. Pence by his father prior to his death, and is not involved in this litigation.

'He made his sister Pearl L. Darr, her husband Omer, and their two children, Velma and Vera Darr, defendants thereto. The said Velma and Vera were then unmarried but subsequently became Velma Lantz and Vera Myers, who are the appellants herein.

'The records of the Elkhart Circuit Court disclose that service was had on all defendants and Pearl, Omer, and Vera Darr appeared generally and for answer disclaimed any right, title or interest in the real estate involved. Velma, being a minor, appeared by a guardian ad litem who filed answer demanding strict proof of each and every material allegation of the complaint.

'Said complaint was in general terms and merely alleged that the plaintiff, Samuel O. Pence, is the owner in fee simple of the lands described; that the defendants claim title to and an interest in said lands adverse to the plaintiff's rights, which claims are without right and unfounded.

'Upon these issues the court, on January 31, 1922, entered a decree declaring Samuel O. Pence to be the fee simple owner of said lands and quieting his title thereto against all claims of the defendants which were adjudged to be without right and unfounded.

'On March 6, 1922, Samuel O. Pence remarried his former wife Fern and lived with her continuously until his death on August 28, 1952, leaving Fern, his widow, as his sole and only heir at law.

'Pearl L. Darr preceded her brother Samuel in death on June 6, 1944.

'During his lifetime, Samuel O. Pence, with his wife Fern J. Pence joining, executed a conveyance to one Frank P. Bothwell, conveying the lands concerned and he, the said Frank P. Bothwell, immediately reconveyed the same lands to Samuel O. Pence and Fern J. Pence, husband and wife.

'On October 29, 1952, the appellants brought the present suit against Fern Pence, but before the suit could be brought to issue Fern died, leaving a last will and testament which was duly admitted to probate in the Elkhart Circuit Court. By said Will she left all of her estate to a nephew L. G. Juday, who was also named executor thereof. On February 24, 1953, the nephew L. G. Juday was substituted as a party defendant in his representative capacity as Executor and in his individual capacity.'

The appellants contend that these facts, as a matter of law, entitle them to have their title quieted as prayed for. That such relief was denied them and therefore the decision of the court is contrary to law. Their theory is that Item 2(b) of the will of John A. Pence constituted an executory devise of the fee simple title to the real estate in controversy to them in the event Samuel O. Pence died leaving Fern J. Pence as his widow and providing further that their mother Pearl L. Darr was then dead. That said executory devise became operative on August 28, 1952, when Samuel O. Pence died then sustaining the relationship of a husband to Fern J. Pence who survived him as his widow and Pearl L. Darr having preceded him in death. They say that the judgment Samuel O. Pence obtained on January 31, 1922, quieting his title to the land here involved against all claims of these appellants and adjudging said claims to be without right and unfounded, is of no force and effect as a defense to this suit on the theory of res adjudicata because (1) a future interest in real estate created by an executory devise is indestructible except by the failure of the contingency upon which the estate of the first taker is limited; and (2) that their rights or interest in the real estate involved did not come into existence until August 28, 1952, when Samuel O. Pence died leaving Fern A. Pence as his widow. That was 30 years after Samuel O. Pence quieted his title to said real estate at which time they had no interest in or assertible claim against said property.

We think without doubt the law is with the appellants in their assertion that Item 2(b) of the will of John A. Pence constituted an executory devise to them of the real estate in question. 2 Tiffany on Real Property, 3rd Ed., § 360, pp. 110, 111. It is also settled law that a fee simple or lesser estate may be created so as to be defeasible and subject to executory limitation. Corey v. Springer, 1894, 138 Ind. 506, 37 N.E. 322; Watson v. Tracy, 1921, 77 Ind.App. 163, 133 N.E. 411; 19 Am.Jur., Estates, § 14, p. 472.

We further agree with appellants that it is the law in Indiana, and generally elsewhere, that no person can destroy an executory interest in another person, either by alienation, merger or surrender. Abernathy v. McCoy, 1930, 91 Ind.App. 574, 154 N.E. 682; Jones v. Miller, 1850, 13 Ind. 337. The late Professor Gavit in his text on Future Interests, 1934 Ed., § 90, p. 196, states the rule thus 'It seems clear that future interest other than contingent remainders can in no event be destroyed at the pleasure of the owners of prior interests. At common law, interest following a fee tail might be barred by the actions of fine or common recovery. Our statutes certainly abolish the fee tail, so that any interests limited upon it takes effect, if valid, as executory interests. They are thus indestructible.'

It is conceivable, however, that the terms of the limitation, imposed by the will on the first taker's estate, are ambiguous and the testator's intention in respect thereto is difficult to determine within the four corners of the instrument; or a question may arise concerning the failure of the contingency upon which the future estate depends for fruition. Under such circumstances it must be conceded that any interested person may resort to the proper court to have his rights determined.

It seems clear to us that when Samuel O. Pence was divorced from his wife Fern on November 5, 1921, he concluded that, under the terms of his father's will, his estate in the real property in controversy became one in fee simple absolute. This position can be justified if said will is construed to mean that as long as he and Fern sustained the relationship of husband and wife he was to have only the rents and profits of said real estate but in the event he survived such relationship, either through divorce or Fern's death, the property became his in fee simple absolute thus vesting in him an estate not subject to limitation by executory devise.

On the other hand Samuel O. Pence was faced with the possibility that his father's will might be construed, as the appellants now urge, as evidencing an intention on the part of the testator to bar forever the possibility of his son Samuel ever acquiring an interest in his property that he could pass along to Fern and if Samuel divorced and remarried Fern and died while...