Myers v. Carney

• Decision Date: 11 December 1908
• Docket Number: 21,372
• Citation: 86 N.E. 400,171 Ind. 379
• Parties: Myers v. Carney, Executor, et al
• Court: Indiana Supreme Court

86 N.E. 400

171 Ind. 379

Myers v. Carney, Executor, et al

No. 21,372

Supreme Court of Indiana

December 11, 1908

From Jennings Circuit Court; Francis M. Thompson, Judge.

Final report of Henry Carney, Jr., as executor of the will of Henry Carney, Sr., to which James W. Myers excepts.From a judgment approving such report, the exceptor appeals.Transferred from Appellate Court under § 1394Burns 1908, cl. 2, Acts 1901, p. 565, § 10.

Reversed.

Batchelor & Son and Howe & Batchelor, for appellant.

John Overmeyer, Frank E. Little and New & New, for appellee.

OPINION

Montgomery, J.

This appeal is from a judgment overruling appellant's exceptions to, and approving, the final report of appellee Carney as executor of the will of Henry Carney, Sr., deceased.A solution of the question at issue requires a construction of the will of said decedent, which was executed January 1, 1883.That part of the will necessary to an understanding of the point involved reads as follows:

"In the name of the Benevolent Father of all, I, Henry Carney, Sr., of the county of Jennings and State of Indiana make and publish the following as my last will and testament.

First.I bequeath and will to my wife, Nancy Carney, all of the real estate of which I die the owner, to have and to hold so long as she continues to be my widow, until her death therefor and during her natural life.

Second.When my said wife shall cease to be my widow either by marriage or death it is my will that my real estate shall be sold and the proceeds thereof distributed as follows, to wit: To the children and heirs of John Carney, deceased, named as follows: Anna Carney, Cora Carney, James F. Carney, John R Carney and Henry R. Carney, the one-eighth of the proceeds of said real estate.To the child of Lucy Barnum, deceased, to wit: Everett Barnum, the one-eighth of the proceeds of the sale of the real estate; to Mary McNeelan, Elizabeth Myers, Thomas B. Carney, Sarah Hendricks, Henry Carney, Jr., and Emma Carney, each the undivided one-eighth of the proceeds of the sale of said real estate.

Third.As to the personal estate of which I may die possessed, including notes, and accounts and choses in action of every kind, I will and bequeath the same to my wife so long as she continues to be my widow and if she does not marry then during her natural life coupled with the power to sell and dispose of the same absolutely in her discretion and with the further power to purchase other property with the proceeds thereof to be held by her in the same way and with the same power of disposition and at the marriage of my said wife or at her death whatever remains of my personal estate or that which has been purchased because and through the proceeds thereof, the same shall be sold and the proceeds divided as I have herein provided for the division of the proceeds arising from the sale of my real estate.

Fourth.The portion to be paid to the heirs of John Carney hereinbefore provided shall not be paid to them until they arrive and become twenty-one years of age; that is, each shall be paid his or her part as he or she shall become twenty-one, if at that time the real and personal property shall have been sold and the proceeds collected as hereinbefore provided, if either one of said heirs of said John Carney shall die before reaching twenty-one years of age or before distribution, his or her portion as the case may be, shall be paid to the survivors except he or she have children, in which case the portion that would come to the parent shall go to such children.

Fifth.If my grandson, Everett Barnum, or either one of my living children shall die before the distribution of my estate as hereinbefore provided, his or her portion shall descend as provided by law where a person dies intestate."

The six legatees, other than the grandchildren, named in item two of the will, were children of the testator, and, at the time of his death, his wife, children and grandchildren, named in the will, were living and constituted all his heirs at law.At the time the will was made, and also at the testator's death, all his living children, except Emma Carney, were married and had a child or children living.Three of the children have died since the testator's death.Elizabeth Myers died June 16, 1894, leaving appellant, her husband, as her only heir at law, her only child, Elmer, having died June 6, 1887, subsequently to the death of testator.Mary McNeelan died in the year 1886 or 1887, leaving a husband and four children surviving her.Sarah Hendricks died during the year 1893, leaving a husband and three children surviving her.The wife of the testator remained a widow until her death, which occurred January 26, 1905.Elizabeth Myers having died intestate, before the death of her mother and before the distribution of the estate, the immediate question for decision is whether the share bequeathed to her by this will, being under $ 1,000 in amount and value, descended to appellant as her sole heir, or, in accordance with the laws of descent, went to the heirs at law of the testator.

Appellees' contention is that the will in controversy gave the testator's wife an estate for life or during widowhood, with remainder to the beneficiaries named, but contingent upon their living until the time fixed for distribution; and in case of the death of any legatee before distribution, his or her share lapsed and passed from the testator to his heirs under the laws of descent; that, Elizabeth Myers having died before distribution, the undivided one-eighth of the estate devised and bequeathed to her was thereby divested, and descended to the heirs of the testator in accordance with the laws of descent.

Appellant's contention is that upon the death of the testator an absolute estate in fee vested in the beneficiaries named, the enjoyment of which was postponed until the death or marriage of the life tenant, and a sale of the estate and distribution of the proceeds; that Elizabeth Myers, having survived the testator, took a vested interest, which upon her subsequent death went to her heirs under the laws of descent, and having died intestate her undivided one-eighth part of the estate descended to her husband James W. Myers, as her only heir at law.

The estate given to the children of John Carney, deceased, is subject to certain special provisions, about which there is no controversy.

The dispute grows out of the proper interpretation of the fifth item of the will in connection with its other provisions--appellant's insistence being that in case of the death of any one of the beneficiaries referred to before distribution his or her portion descends to his or her heirs, and appellee claiming that in case of such death the portion of the estate intended for such beneficiary should descend from the testator to his heirs.

Opposing counsel agree upon many of the cardinal rules of construction, yet disagree widely, as stated, in their conclusions as to the meaning of this will.

It is conceded that the law favors the vesting of remainders absolutely, rather than contingently, and at the earliest possible period, and presumes that words of postponement relate to the beginning of the enjoyment and not to the vesting of the estate.Campbell v. Bradford(1906), 166 Ind. 451, 77 N.E. 849;Taylor v. Stephens(1905), 165 Ind. 200, 74 N.E. 980;Gingrich v. Gingrich(1896), 146 Ind. 227, 45 N.E. 101;Moores v. Hare(1896), 144 Ind. 573, 43 N.E. 870;Tindall v. Miller(1896), 143 Ind. 337, 41 N.E. 535;Fowler v. Duhme(1896), 143 Ind. 248, 42 N.E. 623;Boling v. Miller(1893), 133 Ind. 602, 33 N.E. 354;Borgner v. Brown(1893), 133 Ind. 391, 33 N.E. 92;Wright v. Charley(1891), 129 Ind. 257, 28 N.E. 706;Heilman v. Heilman(1891), 129 Ind. 59, 28 N.E. 310;Bruce v. Bissell(1889), 119 Ind. 525, 22 N.E. 4, 12 Am. St. 436;Amos v. Amos(1889), 117 Ind. 19, 19 N.E. 539;Hoover v. Hoover(1889), 116 Ind. 498, 19 N.E. 468;Davidson v. Hutchins(1887), 112 Ind. 322, 13 N.E. 106;Davidson v. Bates(1887), 111 Ind. 391, 12 N.E. 687;Harris v. Carpenter(1887), 109 Ind. 540, 10 N.E. 422;Davidson v. Koehler(1881), 76 Ind. 398;Miller v. Keegan(1860), 14 Ind. 502.

It is also a familiar principle that when an interest or estate has been given in clear terms in one clause of a will, such interest or estate cannot be taken away or cut down by a subsequent clause which is not equally clear and decisive of the testator's intention.Stimson v Rountree(1907), 168 Ind. 169, 78 N.E. 331;Snodgrass v. Brandenburg(1905), 164 Ind. 59, 71 N.E. 137;Langman v. Marbe(1901), 156 Ind. 330, 58 N.E. 191;Lumpkin v. Rodgers(1900), 155 Ind. 285, 58 N.E. 72;Rusk v. Zuck(1897), 147 Ind. 388, 45 N.E. 691;Mulvane v. Rude(1896), 146 Ind. 476, 45 N.E. 659;Orth v. Orth(1896), 145 Ind. 184, 42 N.E. 277, 32 L.R.A. 298, 57 Am. St. 185;Rogers v. Winklespleck(1896), 143 Ind. 373, 42 N.E. 746;Fowler v. Duhme(1896), 143 Ind. 248, 42 N.E. 623;Mitchell v. Mitchell(1895), 143 Ind. 113, 42 N.E. 465;Ross v....