Miller v. Smith

• Decision Date: 24 October 1921
• Docket Number: No. 10940.,10940.
• Citation: 79 Ind.App. 1,132 N.E. 607
• Parties: MILLER v. SMITH et al.
• Court: Indiana Appellate Court

79 Ind.App. 1

132 N.E. 607

MILLER

v.SMITH et al.

No. 10940.^*

Appellate Court of Indiana, Division No. 1.

Oct. 24, 1921.

Appeal from Circuit Court, Huntington County; Geo. M. Eberhart, Judge.

Suit by Mary A. Miller against Luro M. Smith and others to quiet title. Judgment for defendants, and plaintiff appeals. Reversed, with instructions.

Samuel E. Cook and Otto H. Krieg, both of Huntington, for appellant.

Fred H. Bowers, Milo N. Feightner, and Lee M. Bowers, all of Huntington, for appellees.

REMY, J.

On January 31, 1907, Michael Miller, being possessed of certain personal property, and the owner in fee simple of the real estate here in controversy, executed his last will. By item 1 of his will Michael Miller directed that his debts should first be paid “from any money or personal property” he should own at the time of his death; and by item 2 the remaining portion of his personal estate he bequeathed to his wife, Mary A. Miller, who is the appellant herein. Item 3 of the will is as follows:

“I hereby will, devise and bequeath all my real estate that I may have at the time of my death to the said Mary A. Miller to have and to hold for and during her natural life.”

By item 4 it was provided that after the death of his wife the real estate devised to her by item 3 should go to the testator's children. In item 4 appellant was named as executrix. On April 9, 1908, for the purpose of changing the title of said real estate from himself to himself and wife as tenants by entireties, Michael Miller, his wife joining in the deed, conveyed the real estate to John and E. S. Miller, who on the same day reconveyed it to Michael Miller and wife. On August 21, 1909, Michael Miller died; and thereafter, the will having been probated, appellant qualified as executrix, and administered the estate. Out of the personal property the debts of the estate were paid, and the remainder of the personalty was delivered to appellant in accordance with the terms of the will.

Sometime after the estate was settled this suit was commenced by appellant against appellees, the children of Michael Miller, asking that her title to the real estate be quieted. There was an answer in denial; and some of appellees filed a cross-complaint assertingthat they were the owners of the fee of the real estate. The cause was submitted to a jury, and when appellant had offered her evidence and rested, the court on motion of appellees directed the jury to return a verdict for appellees, to the effect that they were the owners of the real estate in question, in remainder, subject to a life estate of appellant. There was judgment accordingly.

The only error properly assigned is the action of the court in overruling the motion for a new trial; and the only reason for a new trial is the alleged error of the trial court in directing the verdict.

The facts pleaded, and which were shown by the evidence at the trial, are not in dispute, and are in substance as hereinabove set out.

Appellant asserts title to the fee simple of the real estate involved in this suit by virtue of the deeds of April 9, 1908, by which the title was conveyed to her and her husband as tenants by entireties. On the other hand, appellees claim title under the will of their father. It is the claim of appellees, and the trial court by its action in directing the verdict held, that by his will Michael Miller intended to, and did, devise the real estate in controversy, though at the...