Moorman v. Moorman

• Citation: 156 Ind.App. 606,297 N.E.2d 836
• Decision Date: 28 June 1973
• Docket Number: No. 3--473A37,3--473A37
• Parties: John Stephen MOORMAN et al., Plaintiffs-Appellants, v. Patricia Lynn MOORMAN et al., Defendants-Appellees.
• Court: Court of Appeals of Indiana

Page 836

297 N.E.2d 836

156 Ind.App. 606

John Stephen MOORMAN et al., Plaintiffs-Appellants, v. Patricia Lynn MOORMAN et al., Defendants-Appellees.

No. 3--473A37.

Court of Appeals of Indiana, Third District.

June 28, 1973.

Paul Reed, Knox, for plaintiffs-appellants.

LeRoy D. Gudeman, Knox, for defendants-appellees.

HOFFMAN, Chief Judge.

This is an appeal from a judgment which construed the last will and testament of John D. Moorman.

Paragraph 5 of such last will and testament reads as follows:

'5. I give, devise and bequeath to my son, John D. Moorman, Jr., a full life estate in the Six Hundred (600) acre farm known as the Eagle Creek Farm in Section Thirteen (13) and Fourteen (14), Center Township, Starke County, Indiana, together with the appurtenances thereunto belonging, and I give, devise and bequeath to all his legitimate children living at the time of his passing the fee simple title to said lands in Section Thirteen (13) and Fourteen (14) aforesaid or their legitimate descendants, share and share alike, in equal proportions and subject to the life estate of John D. Moorman, Jr., therein.'

The trial court entered the following finding and judgment:

'The Court having heard the evidence and being duly advised in the premises, does now make the following interpretation of the Last Will and Testament of John D. Moorman:

'Paragraph Five (5) of said will gives to John D. Moorman, Jr. a life estate in the 600 acre farm known as the Eagle Creek Farm in Section Thirteen (13) and Fourteen (14), Center Township, Starke County, Indiana.

'The fee simple title shall vest at the time of the death of John D. Moorman, Jr. Said fee simple title shall vest in the children of John D. Moorman, Jr. or the descendants of deceased children of John D. Moorman, Jr. which said descendants are living at the death of said John D. Moorman, Jr.'

The issue presented on appeal is at what point in time does the fee simple vest? At the death of the testator? At the death of the life tenant?

The provisions of the will must be examined to determine whether in construing it there is a necessity for resorting to rules of construction or whether the provisions clearly and plainly indicate the intention of the testator so as to make the rules of construction improper and unnecessary. Busick v. Busick (1917), 65 Ind.App. 655, 115 N.E. 1025, 116 N.E. 861.

The first part of Paragraph 5 clearly gives to testator's son, John D. Moorman, Jr., a life estate in the real estate therein described.

The second part of Paragraph 5 gives the fee simple to the legitimate children living at the time of the death of John D. Moorman, Jr., or the children's legitimate descendants. This seems to indicate that the fee simple would not vest until the death of John D. Moorman, Jr.

The third part of Paragraph 5 makes the children's interest, being the fee simple, subject to John D. Moorman, Jr.'s life estate. This is inconsistent with the proposition that the fee simple vests only upon the death of John D. Moorman, Jr. In order for the children's interest to be subject to the life estate the fee simple would have to vest at the time of testator's death.

Therefore, there exists such an ambiguity in Paragraph 5 of the will that the policy of the law makes it necessary to invoke the established rules of construction to construe such paragraph.

The rules of construction applicable are stated in Aldred v. Sylvester (1916) 184...