Ragsdale v. Robinson

• Decision Date: 13 January 1942
• Docket Number: 27587.
• Citation: 38 N.E.2d 570,219 Ind. 335
• Parties: RAGSDALE et al. v. ROBINSON et al.
• Court: Indiana Supreme Court

38 N.E.2d 570

219 Ind. 335

RAGSDALE et al. v. ROBINSON et al.

No. 27587.

Supreme Court of Indiana

January 13, 1942

Kivett & Kivett, of Indianapolis, and Fremont Miller, of Franklin, for appellants.

Claude R. Henry, of Shelbyville, and Richard La Grange, of Franklin for appellee Gar Kendall.

Neal & Williams, of Indianapolis, and James M. Robinson, of Franklin, for other appellees.

FANSLER Judge.

The executor of the estate of Blanche M. Ragsdale filed a petition to sell real estate to pay debts. The appellants intervened and claimed title to the property under the will of Ira E. Ragsdale, their brother and the deceased husband of Blanche M. Ragsdale. They asserted this title in answers and in a cross-complaint. Demurrers to these pleadings were sustained, and these rulings are the basis of the errors assigned.

Ira E Ragsdale made the following provisions in his will:

'Item 3. I give and bequeath to my Mother Susan C. Ragsdale, one-half of the rents and profits of my farm during her life time.

'Item 4. I give and bequeath to my said wife one-half of the rents and profits of my said farm, and after the death of my said mother, I give and bequeath to my said wife all of the rents and profits of my said farm for and during the remainder of her life.

'Item 5. I give and devise to my said wife the home where we now reside in the City of Franklin. * * *'

'Item 7. I give and devise to my brothers in equal shares my farm located about four miles northwest of the said City of Franklin subject to the life interest of my said mother and wife. * * *'

It appears from the answers and cross-complaint that upon the death of Ira E. Ragsdale, his widow elected to take under the will; that she thereby took valuable personal property and a valuable home.

It is further alleged that at the time the will was executed, and at the date of the death of Ira E. Ragsdale, he owned in fee simple 140 acres of land located, as indicated in his will about 4 miles northwest of the City of Franklin. Upon the said land there were buildings and equipment suitable for farming. At the same time, Ira E. Ragsdale and his wife, Blanche M. Ragsdale, owned as tenants by the entireties 80 acres of land adjoining and contiguous to the 140 acres above referred to. There was no dwelling or buildings of any consequence on this 80-acre tract. It is alleged that Ira E. Ragsdale used and operated the entire 220 acres as a single farm; that he furnished the money and paid the purchase price for the 80-acre tract; and that, in speaking of and referring to said farm of 220 acres, he always used the words, 'my farm'; that 'said farm was at all times operated by him as one unit and was generally known as the 'Ira E. Ragsdale farm,' and always spoken of whenever referring to said 220 acres, by the said Ira E. Ragsdale, as 'my farm." It is further alleged that in executing his will, it was the intention of Ira E. Ragsdale to give and devise to his brothers the entire 220 acres, subject only to a life estate in his mother and his wife.

It is contended by the appellants that Mrs. Ragsdale, having accepted the benefits of the will, title in her 80 acres vested in the brothers under the terms of the will.

The rule is well established that if a testator disposes of property not his own, and gives a benefit to the person to whom the property belongs, the devisee or legatee who elects to accept the benefits so given him must make good the testator's attempted disposition of such person's property. Hartwig, Adm'r, et al. v. Schiefer, 1897, 147 Ind. 64, 46 N.E. 75; Cameron v. Parish et al., 1900, 155 Ind. 329, 57 N.E. 547; Young v. Biehl et al., 1906, 166 Ind. 357, 77 N.E. 406. The appellants rely upon this rule, and contend that, by his will, Ira E. Ragsdale disposed of the 80 acres, which he owned by entireties with his wife, to his wife and mother for their lives, with the remainder in fee to his brothers; that his wife elected to accept the benefits of the will, and therefore title to the 80 acres vested in the brothers.

In Pomeroy's Equity Jurisprudence, 5th Ed., Vol. 2, it is said: 'The first and fundamental rule, of which all the others are little more than corollaries, is: In order to create the necessity for an election, there must appear upon the face of the will itself, or of the other instrument of donation, a clear, unmistakable intention, on the part of the testator or other donor, to dispose of property which is in fact not his own. This intention to dispose of property which in fact belongs to another, and is not within the donor's power of disposition, must appear from language of the instrument which is unequivocal, which leaves no doubt as to the donor's design; the necessity of an election can never exist from an uncertain or dubious interpretation of the clause of donation. * * *' § 472, p. 349.

'* * * Where, however, the subject-matter upon which the instrument operates is something in which the donor himself has a partial interest, and the donee has also a partial interest in it, or the residue of the property in it, and the language of donation is susceptible of a construction which would confine it to this partial interest of the donor, it is plain that a judicial interpretation is needed to ascertain the real intent. Under these circumstances, whenever the testator or other donor has a partial interest in the property dealt with, it is well settled that the courts will lean most strongly--as far as possible, it has been said--in favor of an interpretation which will...