Lee v. Lee

• Decision Date: 07 April 1910
• Docket Number: No. 7,086.,7,086.
• Citation: 45 Ind.App. 645,91 N.E. 507
• Parties: LEE et al. v. LEE.
• Court: Indiana Appellate Court

45 Ind.App. 645

91 N.E. 507

LEE et al.

v.LEE.

No. 7,086.

Appellate Court of Indiana, Division No. 1.

April 7, 1910.

Appeal from Circuit Court, Wells County; C. R. Sturgis, Judge.

Action by John W. Lee against Archie W. Lee and another. From a judgment for plaintiff, rendered after sustaining a demurrer to the answer, defendants appeal. Affirmed.

Mack & Sons, A. W. Hamilton, and W. A. Lee, for appellants. J. B. Merriman and C. G. Dailey, for appellee.

WATSON, J.

This was an action brought by appellee against appellants to quiet title to certain real estate in Wells county, Ind. The complaint alleges that the plaintiff is the owner in fee simple of the real estate described therein; that each of the defendants claim an interest therein, which claims are without right and unfounded, and are a cloud upon plaintiff's title thereto.

The appellants, Archie W. Lee and Pearl Thatcher, filed answer to the complaint setting out that they are the children of the plaintiff by a former wife; that Wayne Lee and Francis Lee are the children of the plaintiff by his second wife; that Alexander Lee, father of the plaintiff, died testate in Wells county, Ind., on the 24th day of February, 1907; that on the 23d day of May, 1904, said Alexander Lee made a will, item 7 of which is as follows: “I give and devise to my son, John W. Lee, the following real estate in Wells county, Indiana, to-wit: Being the southeast quarter of the southwest quarter of section five (5) township twenty-five (25) north, range twelve (12) east, containing forty (40) acres more or less in fee simple.” That afterwards on the 19th day of December, 1906, said Alexander Lee made a codicil to said will, the first item of which is as follows: “I revoke and cancel the gift and devise in item number seven (7) to my son, John W. Lee, and give, devise and bequeath the following real estate as his interest its noted in item seven (7) of my will; said real estate being described as follows:- Being the southeast quarter of the southwest quarter of section five (5) township twenty-five (25) north, range twelve (12) east, containing forty (40) acres of land more or less, to vest in the said John W. Lee at my death for a period of natural life of said John W. Lee, and at the death of said John W. Lee that the remainder and the fee simple of the said described real estate in this item shall vest in the heirs of the said John W. Lee.” That the said John W. Lee has no other title to said real estate excepting the title he acquired by virtue of said will and codicil; that by said will John W. Lee was to have a life estate only in said real estate; that Archie W. Lee and Pearl Thatcher are each the owner of an undivided one-fourth of said real estate, and that it be so declared. The appellee filed his demurrer to the answer for want of facts, which was sustained by the court, and excepted to by the appellants. Judgment was rendered in favor of the appellee, quieting the title to said real estate as against the appellants. The only error assigned is that the court erred in sustaining the demurrer of the appellee to the answer of the appellants, Archie W. Lee and Pearl Thatcher.

A codicil is a clause added to the will after its execution, the purpose of which is either to alter, enlarge, or restrain the provisions thereof. It does not supersede or revoke the will as an after-made will would do, but it is a part thereof to be construed with it as one entire instrument.

Appellants insist that the rule as laid down in the “Shelley Case” should not apply in this case for the reason that it is manifest by the terms of the will and codicil that it was the intention of the testator that the appellee should take a life estate only in the real estate devised. Judge Sharswood, in Doebler's Appeal, 64 Pa. 9, 15, said: “While the intention of the testator, if consistent with law, is undoubtedly to be the polar star, yet we are bound to take as our guides those general rules or canons of interpretation which have been adopted and followed by those who have gone before us. It becomes no man and no court to be wise above that which is written. Security of titles require that no mere arbitrary discretion should be exercised in conjecturing what words the...