Mulvane v. Rude
Decision Date | 23 December 1896 |
Docket Number | 17,813 |
Parties | Mulvane v. Rude, Executor, et al |
Court | Indiana Supreme Court |
From the Morgan Circuit Court.
Affirmed.
J. C Robinson, H. C. Shaw and Willis Hickam, for appellant.
W. R Harrison, J. S. Bays, Emerson Short and D. E. Beem, for appellee.
This action was brought by appellant to recover the possession of certain real estate and personal property and to quiet the title to the real property. A demurrer for want of facts was sustained to each paragraph of the complaint and judgment was rendered upon demurrer in favor of appellees. The errors assigned call in question the action of the court in sustaining the demurrer to each paragraph of the complaint.
The question to be determined is, whether the will of Samuel Folsom gave to Sophia D. Folsom, his second wife, by whom he had no children, the absolute title to the real and personal property in question, or whether it gave to her only a life estate with a remainder over to appellant, who was the only child of the testator by a former marriage. The court below held that the widow, Sophia D. Folsom, by the terms of said will took the absolute title to the real estate and personal property in controversy.
The will, so far as essential to the determination of this case, is as follows:
The purpose in construing a will is to ascertain and give effect to the intention of the testator so far as the same may not interfere with the established rules of law. Fowler v. Duhme, 143 Ind. 248, 42 N.E. 623; Allen v. Craft, 109 Ind. 476, 9 N.E. 919; Ross v. Ross, 135 Ind. 367, 35 N.E. 9.
The common law rule that a general devise of real estate, without defining the interest to be taken by the devisee, gives only a life estate, which was abolished in England in 1837, is in force in this State, although it was abolished by the Revised Statutes of 1843, p. 485, section 5, until 1853. Cleveland v. Spilman, 25 Ind. 95; Smith v. Meiser, 51 Ind. 419; Roy v. Rowe, 90 Ind. 54; Mills v. Franklin, 128 Ind. 444, 28 N.E. 60; Ross v. Ross, supra.
In speaking of this rule it was said by Chancellor Kent, 4 Kent Com. (13 ed.), 535, et seq., that, "It does not require the word 'heirs' to convey a fee; but other words denoting an intention to pass the whole interest of the testator, as a devise of all my estate, all my interest, all my property, my whole remainder, all I am worth or own, all my right, all my title, or all I shall be possessed of, and many other expressions of like import will carry an estate of inheritance, if there is nothing in the other parts of the will to limit or control the operation of the words. * * * *" It is also provided by section 2737, Burns' R. S. 1894 (2567, R. S. 1881), that: "Every devise, in terms denoting the testator's intention to devise his entire interest in all his real or personal property, shall be construed to pass all of the estate in such property, including estates for the life of another, which he was entitled to devise at his death." In bequests of personal property, words of inheritance were not required at common law, nor are they now to give an absolute title. Chinn v. Respass, 1 Monroe, T. B. 25; Bailey v. Duncan's Representatives, 4 Monroe, T. B. 256; Boyd v. Strahan, 36 Ill. 355.
Whenever a will purports to dispose of real estate and personal property in the same words and in the same connection, and it is manifest that the testator intended both to go together, it is held that the will must be so construed. Heilman v. Heilman, 129 Ind. 59, 28 N.E. 310, and authorities cited; Ross v. Ross, supra, p. 370; Duncan v. Wallace, 114 Ind. 169, 175, 16 N.E. 137; Wyatt v. Sadler's Heirs, 1 Munf. 537; Johnson v. Johnson, 1 Munf. 549; 3 Jarman on Wills (Randolph & Talcott's ed.), 36, note.
Under these rules counsel for appellant admit that the first item considered alone without regarding the fifth item, gave to the widow the real estate in fee-simple and the absolute title to the personal property, but they insist that when considered in connection with the fifth item and the surrounding circumstances, the title to the same was only during her life. It is thoroughly settled that a devise in fee clearly and distinctly made, or necessarily implied, cannot be cut down or modified by subsequent provisions not clearly and distinctly manifesting the testator's intention to limit such devise. Mitchell v. Mitchell, 143 Ind. 113, 42 N.E. 465; Gingrich v. Gingrich, ante, 227; Orth v. Orth, 145 Ind. 184, 42 N.E. 277; Fowler v. Duhme, supra; Ross v. Ross, supra; O'Boyle v. Thomas, 116 Ind. 243, 19 N.E. 112; Bailey v. Sanger, 108 Ind. 264, 9 N.E. 159; Hochstedler v. Hochstedler, 108 Ind. 506, 9 N.E. 467; McKenzie's Appeal, 41 Conn. 607, 19 Am. Rep. 525; Jones v. Bacon, 68 Me. 34, 28 Am. Rep. 1; Moore v. Sanders, 15 S.C. 440, 40 Am. Rep. 703; Sherburne v. Sischo, 143 Mass. 439, 9 N.E. 797.
When real estate is given absolutely to one person with a gift over to another of such portion as may remain undisposed of by the first taker at his death, the gift over is void as repugnant to the absolute property first given; and it is also established law that where an estate is given to a person generally or indefinitely with a power of disposition it carries a fee, and any limitation over is void for repugnancy. Wiley v. Gregory, 135 Ind. 647, 35 N.E. 507; South v. South, 91 Ind. 221, 46 Am. Rep. 591; Jackson v. Robins, 16 John. 537, 588, and cases cited; Helmer v. Shoemaker, 22 Wend. 137; Campbell v. Beaumont, 91 N.Y. 464; Ide v. Ide, 5 Mass. 500; Burbank v. Whitney, 24 Pick. 146, 35 Am. Dec. 312; Bacon v. Woodward, 12 Gray 376; Bowen v. Dean, 110 Mass. 438; Gifford v. Choate, 100 Mass. 343; Kelley v. Meins, 135 Mass. 231, 234; Williams v. Worthington, 49 Md. 572, 33 Am. Rep. 286; Combs v. Combs, 67 Md. 11, 8 A. 757; Stowell v. Hastings, 59 Vt. 494, 59 Am. Rep. 748, 8 A. 738; Chaplin v. Doty, 60 Vt. 712, 15 A. 362; Exrs. of Judevine, v. Judevine, 61 Vt. 587, 7 L. R. A. 517, 18 A. 778, and note, 18 A. 778; Rubey v. Barnett, 12 Mo. 3, 49 Am. Dec. 112, and notes 115-119; Bean v. Kenmuir, 86 Mo. 666; Norris v. Hensley, 27 Cal. 439; Smith v. Starr, 3 Whart. 62, 31 Am. Dec. 498, and note pp. 501, 502; Jauretche v. Proctor, 48 Pa. 466; Seibert v. Wise, 70 Pa. 147; McClellan v. Larchar, 45 N.J. Eq. 17, 16 A. 269; Hall v. Palmer, 87 Va. 354, 11 L. R. A. 610, 12 S.E. 618, and note, 12 S.E. 618; Rona v. Meier, 47 Ia. 607, 29 Am. Rep. 493; Bills v. Bills, 80 Iowa 269, 45 N.W. 748, and cases cited, 20 AmSt. 418, and note, 8 L. R. A. 696; Ramsdell v. Ramsdell, 21 Me. 288; Mitchell v....
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Mulvane v. Rude
...146 Ind. 47645 N.E. 659MULVANEv.RUDE et al.Supreme Court of Indiana.Dec. 23, Appeal from circuit court, Morgan county; George W. Grubbs, Judge. Action by Emily J. Mulvane against William L. Rude, executor, and others. A demurrer for want of facts was sustained to each paragraph of the compl......