Rogers v. Winklespleck

• Decision Date: 22 January 1896
• Docket Number: 17,664
• Citation: 42 N.E. 746,143 Ind. 373
• Parties: Rogers et al. v. Winklespleck et al
• Court: Indiana Supreme Court

42 N.E. 746

143 Ind. 373

Rogers et al. v. Winklespleck et al

No. 17,664

Supreme Court of Indiana

January 22, 1896

From the Owen Circuit Court.

The judgment of the circuit court is affirmed.

W Hickam, C. E. Davis and W. V. Moffett, for appellants.

G. A Knight and Matson & Luther, for appellees.

OPINION

Hackney, C. J.

By the first eight items of his last will, Oliver Rogers gave to each of his eight children, five dollars, and the ninth item was in these words: "I give and bequeath to my beloved wife Martha Rogers, the residue of all my estate, both personal and real, after all just debts shall have been paid, subject to a division among the aforesaid heirs at her death, in accordance with their obedience to her as she shall deem proper."

Of the lands of which the testator died seized, the widow, upon the theory that she held a fee simple absolute, conveyed one tract, upon which a subsequent grantee executed to Winklespleck a mortgage, and she executed, upon other of said lands, a mortgage to said Winklespeck. The appellants sued the appellees to quiet the title to said lands upon the theory that the widow, under said will, took a life estate with the remainder in fee over to the testator's said eight children.

The trial court denied the correctness of this theory. The question for decision here arises upon the construction of said ninth item of the will, and if it be found that under it the widow took a fee simple absolute, the judgment of the trial court was correct, otherwise it is erroneous.

The words of the item devising "the residue of all my estate, both personal and real," standing alone, would without doubt, carry a fee simple absolute. Ross v. Ross, 135 Ind. 367, 35 N.E. 9; Roy v. Rowe, 90 Ind. 54; McMahan v. Newcomer, 82 Ind. 565; Smith v. Meiser, 51 Ind. 419.

It devises the residuum. No estate is left in the testator, after these words, which can become the subject of reversion. If the children were given an estate in the lands that conclusion must be reached from words deemed to be clearly repugnant to those devising the fee, and of such strength as to cut down the fee to a life estate, with the fee limited over to the children, or to create an estate in fee, to be held by the widow in trust for the children, and to be by her conferred upon them by an instrument, becoming effective at her death. In other words, having parted with his entire estate to his widow, nothing remained in him to revert in possession or estate, and to go to his children, through him, at the close of the particular estate, namely, that given to the widow. Likewise, if he gave to the wife a fee absolute, it would have been utterly incongruous to have limited a fee to the children, for the estate given the first taker was all of the estate, and nothing remained for devise over. Bouv. Inst., Vol. 2, p. 283; Blackstone, Vol. 2, p. 164; Mitchell v. Morse, 77 Me. 423, 1 A. 141; s. c. 52, Am. Rep. 781; Outland v. Bowen, 115 Ind. 150; 1 Jarman Wills 873, 17 N.E. 281.

In the last cited case, Mitchell, J., speaking for this court, said: "It must follow, therefore, if there was no estate left in the grantor after the creation of the precedent estate, vested in the first taker, he could create no remainder, as a remainder can only be created out of the estate left in the grantor after the creation of the particular estate." This proposition is axiomatic.

There is no room for claiming an executory devise since there is no attempted limitation to commence on a future contingency which defeats the primary estate. Appellants' learned counsel expressly deny the possibility of an executory devise under the language of this will.

Our inquiries, therefore, are narrowed to these. Does the language following that creating a fee have the effect to cut down that estate to one for life, and to limit the fee over to the children? Or does it carry the fee in trust for the children?

As said in Roy v. Rowe, supra, "If the will contain any expression, in addition to the general devise, indicating an intention to pass a fee simple, the court will use this to bear out the intention; though it must in some way affirmatively appear, courts are easily satisfied that an estate of inheritance was intended. Cleveland v. Spilman, 25 Ind. 95. They are always ready to adopt any plausible excuse for rescuing particular cases from the wrong direction which the general rule would give them. 2 Redf. Wills 327."

While in the present case there is no doubt that the words of the devise create, in the first instance, a fee simple, the rules first quoted indicate that, where such an estate is given, the courts will be reluctant to accept accompanying words to denude it, and to reduce it to that lesser estate from which a plausible excuse will always rescue it. This reluctance has been frequently shown in those cases which hold that where a fee is given by the clear words of the will, subsequent words will not be permitted to cut down that estate unless they indicate a clear, decisive and unmistakable intention on the part of the testator to do so. Fowler v. Duhme, 143 Ind. 248, 42 N.E. 623; Orth v. Orth, 145 Ind. 184, 42 N.E. 277; Ross v. Ross, supra; Mitchell v. Mitchell, 143 Ind. 113, 42 N.E. 465, and cases cited in each.

If, therefore, the words which follow those creating a fee are susceptible of plausible construction consistent with the estate so created, that construction will be given them. If a life estate in the widow had been intended a simple form of words would have sufficed. If a remainder was intended to be given by the words suggesting a division upon the wife's death, it is not a vested remainder, but is indefinite and contingent, depending upon the obedience of the children to their mother, "as she shall deem proper." One who may be incorrigible, if the mother shall deem it proper, shall take nothing. Another who may be dutiful may receive a large proportion, or so on. The law favors vested estates, and if the primary devise had been of but a life estate the fee would be in trust or in abeyance, since there are no words carrying it over to the children at all events.

In considering the effect of the closing clause of the item in question, the case of Ross v. Ross supra, is in point. There the will provided that "After all expenses paid of settling my estate, I do hereby give and bequeath to my wife, Martha Ross, all my property, personal and real, after paying my just debts and claims; first, to pay to my son, Joseph W. Ross, five hundred dollars, and at her, my wife's, death, he to come in equal heir with my second children." It was held that the devise, in the first instance, carried the fee and that under the rule that clear and decisive words were required to cut it down to a life estate the son took no estate from the provision that he should "come in equal heir with" the "second children." The latter provision was carried down because of its repugnance to the fee devised to the first taker and as not clearly manifesting an intention to cut down that estate. The two provisions are not widely separated but are a part of one short item not broken by a period. There is no ground upon which to distinguish that case from the present in any effect of...