Mills v. Franklin

• Decision Date: 12 June 1891
• Docket Number: 15,088
• Citation: 28 N.E. 60,128 Ind. 444
• Parties: Mills et al. v. Franklin et al
• Court: Indiana Supreme Court

28 N.E. 60

128 Ind. 444

Mills et al. v. Franklin et al

No. 15,088

Supreme Court of Indiana

June 12, 1891

From the Owen Circuit Court.

Judgment affirmed, with costs.

I. H Fowler, W. A. Pickens, E. C. Steele and J. H. Jordan, for appellants.

D. E Beem and W. Hickam, for appellees.

OPINION

Olds, J.

The appellants, heirs of Christopher Wyatt, deceased, brought this action against the appellees to recover certain real estate described in the complaint. The appellees claim title through one Henry Ritter, and the question presented is whether said Henry Ritter took a fee simple or a life-estate in the land by the will of Christopher Wyatt. The appellants insist that said Ritter only took a life-estate. So much of the will of Christopher Wyatt as has any bearing upon the question reads as follows:

Item third, "I give and bequeath to my beloved wife, Margaret Wyatt, during her lifetime, 99 acres of land off of the east side of the northeast quarter of section 12, township 9 north, of range 4 west, together with all my personal estate and at her death I will and bequeath the said 99 acres of land, together with the said personal estate, to my brother-in-law, Henry Ritter."

Item four, "I give and bequeath to my brother-in-law, Henry Ritter, all the southwest quarter of section 12, in township 9 north, of range 4 west, together with 40 acres of land off of the west side of the northeast quarter of section 12, township 9 north, of range 4 west, and 14 acres of land in the northwest quarter of said section 12, township 9 north, of range 4 west."

It is contended by counsel for the appellants that under the common law rule "where a devise of real estate is made merely describing the property without defining the interest which the devisee shall take, it will only give a life-estate to the devisee; and that this rule of construction is in force in this State, and by the application of it to this will Ritter took but a life-estate and the fee passed to the heirs of Christopher Wyatt."

Admitting that this rule of construction is in force, as stated in Roy v. Rowe, 90 Ind. 54, yet it is a somewhat technical rule of construction, and is not applied where the other expressions and language of the will indicate an intention of the testator to pass a fee simple, and due consideration must be given to other well-settled rules of construction.

It is a well-settled rule that courts will avoid giving such a construction to a will as results in a partial intestacy unless the language compels such construction. See Cate v. Cranor, 30 Ind. 292; Roy v. Rowe, supra.

Courts in construing wills seek to ascertain and declare the true intention of testators, for the primary object in construing wills is to ascertain and give effect to the intention of the testators. Waters v. Bishop, 122 Ind. 516, 24 N.E. 161; Daugherty v. Rogers, 119 Ind. 254, 20 N.E. 779.

The question presented by this case is, Did the testator Wyatt intend to give Henry Ritter a life-estate or a fee in the real estate described in items three and four of his will?

To hold that Ritter only took a life-estate would be to so construe the will as to result in a partial intestacy, and allow the fee to pass by descent to the heirs of Wyatt; this would be in direct conflict with one of the well-settled rules applicable to the construction of wills.

In Schouler on Wills, section 483, it is said: "In this country, a devise after a life-estate, especially if made to one heir, with an evident intention of excluding the other heirs, has in several instances been held to pass a fee. And one devise made simply has been supported as a devise in fee by coupling it with another in the will which was used with suitable words of limitation. Indeed, in many States it has been held that whenever an intention to dispose of the fee can by any fair inference be drawn from the will, the technical rule must be excluded; and that very slight circumstances will be laid hold of as indicating such intention."

Item third of the will first carves out a life-estate in 99 acres of the land, and out of the personal estate, and gives it to the widow, and then...