Oliphant v. Pumphrey

• Decision Date: 23 November 1923
• Docket Number: 24,500
• Citation: 141 N.E. 517,193 Ind. 656
• Parties: Oliphant et al. v. Pumphrey et al
• Court: Indiana Supreme Court

141 N.E. 517

193 Ind. 656

Oliphant et al. v. Pumphrey et al

No. 24,500

Supreme Court of Indiana

November 23, 1923

From Decatur Circuit Court; John W. Craig, Judge.

Action to quiet title by Caroline Oliphant and others against Francis M. Pumphrey and others. From a judgment for defendants, the plaintiffs appeal. (Transferred from the Appellate Court under 2d subdivision § 1394 Burns 1914.)

Affirmed.

George L. Tremain and Rollin A. Turner, for appellants.

Hugh Wickens, John E. Osborn and Frank Hamilton, for appellee.

OPINION

Ewbank, J.

William Pumphrey died testate, the owner of certain real estate described in the second codicil of his will, leaving a childless widow, who was a sister of the appellants, and ten children by a former marriage, who are the appellees herein. The widow elected to take under the will and for a dozen years held possession of said real estate, and then died leaving the appellants as her sole heirs. They then sued to quiet title to the real estate so devised to her, alleging that, under the will of her husband and codicils thereto, she took a fee simple title which they had inherited from her. The complaint was in one paragraph, to which a demurrer was sustained, and this ruling is the only error assigned.

Appellants set out in their complaint as the foundation of their alleged title the will of William Pumphrey, dated July 23, 1895, a codicil dated September 1, 1900, and a second codicil dated March 8, 1905, all of which had been duly probated, and alleged their inheritance from his widow of what was thereby devised to her. Omitting signatures and attestations, the will and codicils respectively, read as follows:

The will, dated July 23, 1895: "Know all men by these presents that I, William Pumphrey of Decatur County State of Indiana, do make and publish this, my last will and testament, revoking all wills by me heretofore made, especially a will made by me on the 24th day of May, 1883. Item 1st. It is my will that my wife, Fannie Pumphrey, in case of my death and that she survive me, shall take, in lieu of all her interest in my estate as widow, my dwelling house in the town of Burney, Decatur County, Indiana, together with the two lots on which my barn and garden stand; five hundred dollars in cash; also my household and kitchen furniture, except the parlor furniture, organ and such quilts as my daughter may own.

"Item 2nd. It is my will that all the remainder of my real and personal estate, after the payment of my just debts and funeral expenses, shall descend to my children subject to the advancements herein declared, which are as follows:

"I have advanced to my son Alonzo Pumphrey, four thousand dollars, in full of his portion and that he take nothing under this will.

"To my daughter, Adaline, thirty-three hundred dollars.

"To my son, Francis M. Pumphrey, twenty-five hundred dollars.

"To my son, James Pumphrey, twenty-five hundred dollars.

"To my son, William Pumphrey, Jr., nineteen hundred dollars.

"To my son, Edgar Pumphrey, twenty-one hundred dollars.

"To my daughter, Lizzie Alexander, twenty-one hundred dollars.

"To my daughter, Fannie Minor, three hundred and eighty dollars.

"To my daughters, May and Iva Pumphrey, I have advanced nothing.

"Item 3d. It is my will that the real estate hereinbefore devised to my wife, shall at her death descend to my children. Item 4th. I hereby appoint my sons, James A. and Francis Pumphrey, executors of this my last will, and I hereby authorize and empower them to sell at public or private sale in their discretion all of my real and personal estate in whole or in parcels as they may deem best, and that they advise and consult with my friend James K. Ewing, relative to the settlement of my estate."

The first codicil dated September 1, 1900: "I hereby declare an advancement of two thousand dollars to each of my children which makes them equal, except where I have advanced more as shown by my will, up to this date, and declare this to be a codicil to my foregoing will."

The second codicil, dated March 8, 1905: "Know all men that I, William Pumphrey of Burney, Indiana, do make and publish this codicil to my last will and testament heretofore made and still in force, to wit:

"In my former will I gave to my wife, Fannie, my former residence and four lots, to wit, lots 47 and 48 in Minor's 2nd addition to the town of Burney and a piece of ground lying east thereof 120 feet square and adjoining lots 47 and 48, which would be equal to two lots. I now give and devise to my wife in lieu of the above, the four lots and home where I now live, viz: Lots 53, 54, 55 and 56 in Minor's 2nd and 3d Addition all lying in one body. This is intended to revoke so much of my former will as conflicts with this last devise, which she takes on the same terms and conditions as stated in the first named devise and my former will shall in all other respects remain in force."

Counsel for the appellants rely on the established rules of construction that where real estate was devised by the same language by which the testator bequeathed personal property obviously intended to be consumed and destroyed in maintaining the legatee, it may be presumed, in the absence of language to the contrary, that the real estate was given by the same absolute title as the personal property; that a title in fee given by the first part of a will cannot be taken away or cut down by the words of any subsequent clause which do not clearly and distinctly evidence the testator's intent to do so; that the mere expression of a wish or desire as to the disposition after the wife's death of what had been devised to her in fee is not sufficient to take away or cut down the title in fee so devised; and that, so far as the second codicil made a disposition of the testator's property that was inconsistent with the terms of the original will, and so far as it expressly revoked the disposition which that will had made of his property, it must control, as being the latest expression of his purpose. And they rely on the devise in item one of both real and personal property, the statement therein that it is "in lieu of all her interest in my estate as widow", the fact that what the testator said in item three about the real estate descending to "my...