Moores v. Hare

• Decision Date: 17 April 1896
• Docket Number: 17,777
• Citation: 43 N.E. 870,144 Ind. 573
• Parties: Moores v. Hare et al
• Court: Indiana Supreme Court

43 N.E. 870

144 Ind. 573

Moores v. Hare et al

No. 17,777

Supreme Court of Indiana

April 17, 1896

From the Marion Circuit Court.

Judgment reversed, with instructions to overrule the demurrer to the complaint and for further proceedings in accordance with this opinion.

M Moores, for appellant.

E. E Stevenson, for appellees.

OPINION

Monks, J.

Appellant brought this action against appellees to quiet title to certain real estate. The complaint alleges "that on March 17, 1882, Stoughton A. Fletcher died, leaving a will which contained the following provision: 'I give and devise to my daughter, Maria F. Ritzinger, for and during her natural life, as a life-estate and not in fee, the following real estate: Lot number seven (7) in West's Heirs' addition to the city of Indianapolis, in Marion county Indiana,' and other land. 'At the death of her, said Maria F. Ritzinger, all the said real estate so devised to her for life shall go to her children in fee simple. If any child of hers shall have died, leaving a child or children, then the portion of said real estate that would have gone to the parent shall go to such child or children.'

"That at the time of the probating of the will, Maria F. Ritzinger was a widow and unmarried, and is still unmarried, and that she had then four children, of whom one has since died intestate, unmarried and without children or their descendants, the other three being now of age, two of them being married, one being the mother of the defendants, Myla F. and Julia F. Briggs, and the other the mother of the defendant, Helen Hare; that Maria F. Ritzinger, and all of her children, with the husbands of the two that are married, have united in conveying to plaintiff the property the title to which is sought to be quieted. And plaintiff asks that his title to this property be quieted as to the defendants, who are grandchildren of Maria F. Ritzinger."

To this complaint appellees filed a demurrer, which was sustained by the court, and appellant refusing to plead further, judgment was rendered in favor of appellees.

The only question presented is whether that portion of the will giving Maria F. Ritzinger a life-estate in certain lands created a vested or contingent remainder in her children. It is settled law that words of survivorship in a will, unless there is a manifest intent to the contrary, always relate to the death of the testator, and that in the absence of contrary intent a will always speaks as from the testator's death. Heilman v. Heilman, 129 Ind. 59, 63, 64, 28 N.E. 310, and cases cited; Harris v. Carpenter, 109 Ind. 540, 10 N.E. 422; Hoover v. Hoover, 116 Ind. 498, 19 N.E. 468; Wright v. Charley, 129 Ind. 257, 28 N.E. 706, and cases cited.

It is an established rule that the law not only favors the vesting of remainders, but it also presumes that words postponing the estate relate to the beginning of the enjoyment of the remainder and not to the vesting of such estate. In the absence of a clear manifestation of the intention of the testator to the contrary, an estate will be held to vest at the earliest possible period. The intent to postpone must be clear and manifest and must not arise by mere inference or construction. Davidson v. Koehler, 76 Ind. 398 (409, 410); Hoover v. Hoover, supra; Amos v. Amos, 117 Ind. 37, 19 N.E. 543; Harris v. Carpenter, supra; Borgner v. Brown, 133 Ind. 391, 33 N.E. 92, and cases cited. Bruce v. Bissell, 119 Ind. 525, 22 N.E. 4 (529, 530); Wright v. Charley, supra; Fowler v. Duhme, 143 Ind. 248, 42 N.E. 623, and cases cited.

In Harris v. Carpenter, supra, the will gave to the testator's wife certain real estate during her life, and provided that "at her death the same shall be the property of and pass to my daughter, Laura Carpenter, in fee; but if the said Laura be not living, then to her heirs forever." This court held that the survivorship provided for in the last clause had reference to the time of the death of the testator, and that upon his death Mrs. Carpenter became seized of a vested remainder in fee.

In Hoover v. Hoover supra, the testator devised to his wife certain real estate during life and provided that at her death the undivided one-half thereof should "pass in fee simple to my son, Andrew Hoover, if he be then living, and if he be dead, then to his widow until her death or marriage, and at her death or marriage, then to go to his heirs, and if no heirs be living, then said lands shall pass to the heirs of Daniel Hoover, the testator." This court held that Andrew Hoover took an estate in fee simple, in remainder which vested immediately upon the death of the testator, but which he could only enjoy in possession...