Pate v. Bushong

• Decision Date: 17 December 1903
• Citation: 161 Ind. 533,69 N.E. 291
• Parties: PATE et al. v. BUSHONG.
• Court: Indiana Supreme Court

161 Ind. 533

69 N.E. 291

PATE et al.

v.BUSHONG.

Supreme Court of Indiana.

Dec. 17, 1903.

Appeal from Circuit Court, Henry County; W. O. Barnard, Judge.

Suit by Abraham Pate and others against Peter P. Bushong. Judgment for defendant, and plaintiffs appeal. Transferred from the Appellate Court under act of 1901 (Acts 1901, p. 590, being section 1337u, Burns' Rev. St. 1901). Affirmed.

W. A. Brown, Forkner & Forkner, and I. N. Addison, for appellants. Bundy & Morris and D. W. Chambers, for appellee.

MONKS, J.

Jackson Bushong died testate in Henry county, Ind., in 1898, leaving his widow, Lydia Bushong, his son, Peter P. Bushong, the appellee, and his five grandchildren, Minerva A. Pate, Phœbe T. Thompson, Hannah N. Addison, Cora C. Warrington, and Lillie L. Elliston, children of a deceased daughter of the testator. Said will was legally probated. After the death of said widow, appellants brought this action against appellee for partition of the lands devised to the widow, upon the theory that she took the same in fee simple under said will. The will, omitting the codicil, which is not necessary to a determination of this cause, reads as follows:

“Art. 1st: I give, will and bequeath to my beloved wife Lydia Bushong after my death, should she be living, all of my real estate and personal property that may be left of my estate after my death, except such as may be necessary to pay the expenses of my last sickness and funeral, which I direct to be promptly paid out of my estate, and also such amount of money as may be necessary to pay for a suitable monument for myself and wife, not exceeding four hundred dollars, at the discretion of my executor.

“Art. 2nd: I hereby appoint my son Peter P. Bushong my executor, with full power and authority to execute the provisions of my will and make all settlements with each of the hereinafter mentioned heirs, without bond or security.

“Art. 3rd: After the death of my dear wife, should she outlive me and after all expenses of her last sickness and funeral, and all other debts, if any, be paid out of the then remaining estate, I then will and direct as follows:

“Art. 4th: I will, give and bequeath to my only son Peter P. Bushong, the following real estate in Henry County, State of Indiana:

“The Northeast quarter of Section (29) twenty-nine, Township (18) eighteen, Range (9) nine, containing one hundred and sixty acres, and also twenty acres off the Northwest quarter of Section twenty-nine (29), Town (18), Range nine; and

“Also thirty acres of land off the south end of the east half of south quarter of Section twenty-nine (29), Town (18) eighteen, Range (9) nine, in fee simple, and then direct him to pay the following amounts out of the estate, to-wit:

“Art. 5th: To my granddaughter or heirs, Minerva A. Kerens, the sum of four hundred and fifty dollars ($450).

“Section 6th. To my granddaughter and children, Phebe T. Estell, the sum of two hundred and twenty-five dollars ($225).

“Art. 7th: To my granddaughter and her children, Hannah N. Addison, the sum of two hundred and twenty-five dollars ($225).

“Art. 8th: To my granddaughter, Cora C. Reddick, the sum of two hundred and twenty-five dollars ($225).

“Art. 9th: To my granddaughter, Lila L. Elliston, the sum of five hundred dollars ($500). Making a total amount of sixteen hundred and twenty-five dollars to be paid to my five granddaughters, as named in the above sections by my son, Peter P. Bushong, in the following order to-wit:

“Section 10th: Three months after the death of my wife, P. P. Bushong shall pay to my granddaughter, Lila L. Elliston, or her heirs, if any, the sum of one hundred dollars; and one year later the sum of five hundred to be equally divided between the five heirs, one hundred dollars each, and to continue each succeeding year at the same ratio until each heir shall have received three full payments as stated above, provided, however, that there is to be no interest computed on any payment.

“Art. 11th: I further direct, give and bequeath to my son, Peter P. Bushong, after the death of my wife, and after all expenses of her last sickness and funeral expenses are paid, all of the farming utensils, grain, hay and stock of all kinds that may remain on the farm.

“Art. 12. I further give and bequeath to my son, Peter P. Bushong, and my five grandchildren, all of the household goods to be divided equally among the six heirs, and should any of my granddaughters die intestate with no heirs living, I direct that the amounts be divided among those that are living.

“Given under my hand and seal this 17th day of August, eighteen hundred and ninety-three, (1893).”

At the time the testator made said will and at the time of his death, he was the owner in fee simple and in the possession of the following described real estate in Henry county, Ind., and he was not the owner of any other lands from the date of his will until the time of his death: The northeast quarter of section 29, township 18 north, of range 9 east; also 30 acres off the south end of the east half of the southwest quarter of section 29, township 18 north, of range 9 east; also 20 acres off the west side of the following described lands, to wit, commencing 16 rods south of the northwest corner of the northwest quarter of section 28, township 18 north, of range 9 east, and running thence east 96 rods; thence south to the south line of said northwest quarter of said section, township, and range; thence west on the said line 96 rods to the section line; thence north to the place of beginning. The testator and his wife lived on the 160 acres described in the will, and the 20-acre tract adjoined the same on the east. Appellee also lived on said tract in a house near his father's house, and continued to live thereon after his father's death. After the death of the testator, Peter P. Bushong, appellee, was appointed and qualified as executor of said will, and paid over to appellants Cora C. Warrington and Phœbe T. Thompson the legacies given them by items 6 and 8 of the will, taking receipts therefor as executor.

The questions presented by the record are: (1) Did Lydia Bushong, the widow, take said real estate for life only under said will? (2) Was there a mistake in describing the 20 and 30 acre tracts of land named in the will, and, if so, can the same be corrected, or so interpreted as to apply to the 20 and 30 acre tracts owned by the testator at the time he made the will and at the time of his death? (3) Were Cora C. Warrington and Phœbe T. Thompson estopped from claiming a share in the lands as heirs of Lydia Bushong if she took a fee, by accepting of the executor the legacies given them by the will? The trial court decided these questions in the affirmative, and rendered judgment in favor of appellee. If questions 1 and 2 are answered in the affirmative, it will not be necessary to determine the third.

The purpose of construing a will is to ascertain the intention of the testator, which must be given effect when ascertained, unless in violation of some rule of law. To ascertain such intention, the whole will must be considered, and no word or clause in the will is to be rejected to which a reasonable effect can be given. In this state only a life estate will pass to a devisee unless it affirmatively appears a greater estate was intended. Section 2737, Burns' Rev. St. 1901 (section 2567, Rev. St. 1881, and section 2567, Horner's Rev. St. 1901); Fenstermaker v. Holman, 158 Ind. 71, 74, 62 N. E. 699; and cases cited. It will be observed that the testator has not said in express terms that he devised said real estate to his widow in “fee simple,” either in apt words or by the use of legal words of inheritance. Neither has he given his widow the power of disposing of said real estate in express terms, nor do we think such power can be implied from the language of the will. The will gives to Peter P. Bushong in fee simple 210 acres of real estate, all the real estate the testator owned when he made the will and at the time of his death, and not what remained undisposed of or unexpended at the death of his wife. It is clear, therefore, that the power of the widow to dispose of said real estate cannot be inferred from items 3 and 4. Item 11 describes a kind of personal property which is consumed or destroyed by use, and the language thereof shows that it was the intention of the testator that the expenses of his widow's last sickness and her funeral expenses should be paid out of the property described therein. It is evident that the power of the widow to sell the real estate devised to her cannot be inferred from that item.

Having reached the conclusion that the widow was not given by implication or express words the power to dispose of said real estate, it is clear that, so far as the question of what interest she took in the real estate devised to her is concerned, the same is ruled by the case of Fenstermaker v. Holman, 158 Ind. 71, 62 N. E. 699, and that she took only a life estate therein.

Appellants claim that appellee took no title to the 20 and 30 acre tracts of land in controversy under the will of the testator, because said tracts are not described in the will. It will be observed that the 20-acre tract is described as in section 29, while the 20-acre tract owned by the testator when the will was made and at the time of his death was in section 28, adjoining the 160 acres described in the will. The 30-acre tract is definitely described in the will, except that the words, “south quarter” instead of “southeast quarter” are written in the will. When a person makes a will the presumption is that he intended to dispose of his whole estate, unless it is rebutted by the provisions of the will, or other evidence to the contrary. 2 Redfield on Wills (3d Ed.) § 5x, p. 116; Cate v. Cranor, 30 Ind. 292, 295, 296;Roy v. Rowe, 90 Ind. 54, 50, 60;Mills v. Franklin, 128 Ind. 444, 446, 28 N. E. 60;Groves v. Culph, 132 Ind. 186, 188, 31 N. E. 569;...