Shimer v. Mann

• Citation: 99 Ind. 190
• Decision Date: 12 December 1884
• Docket Number: 10,423
• Parties: Shimer v. Mann
• Court: Supreme Court of Indiana

99 Ind. 190

Shimer v. Mann

No. 10,423

Supreme Court of Indiana

December 12, 1884

Petition for a Rehearing Overruled Feb. 20, 1885.

From the Superior Court of Marion County.

Judgment reversed, with costs.

A. C Ayres, E. A. Brown and E. C. Buskirk, for appellant.

G. W Spahr and P. W. Smith, for appellee.

OPINION

Elliott, J.

On the 12th day of May, 1856, Lydia Lathan executed her last will, containing these provisions:

"Item: I give, devise and bequeath to my late husband's nephew, Samuel B. Mann, all my personal estate, except my family Bible, which I give and bequeath to my niece, Martha Bane.

"Item: I give and bequeath to the said Samuel B. Mann the rents and profits of twenty (20) acres of land situate, lying and being in Warren township, Marion county, Indiana, near and adjoining to the lands of Esquire Shimer, until the youngest child of the said Samuel B. Mann shall become of age, upon the happening of which event it is my will and pleasure that the fee simple of said land shall then vest absolutely in the said Samuel B. Mann and his heirs, and may by him or them be disposed of as he or they may judge best for his or their interest."

The Samuel B. Mann named in the will was the nephew of the testatrix, and, at the time the will was executed, had three children living, Loren, James and Harvey L. Mann. Lydia Lathan died on the 13th day of June, 1857, and at the time of her death her nephew and devisee had no other children than those named. Of these the appellee was the youngest. In February, 1865, Samuel B. and Loren Mann united in a warranty deed purporting to convey the land to the appellant. The appellee arrived at full age in August, 1873, and instituted this suit for partition, claiming an undivided one-third of the land.

The right of the appellee to maintain his claim depends upon the construction of the will of Lydia Lathan. The ruling question in the case, shortly stated, is this: Does the will devise to Samuel B. Mann an estate in fee vesting absolutely when his youngest child attains full age, or does it vest the fee jointly in him and his children living at the time of the death of the testatrix?

Where a deed or a will uses the word "heirs," and uses it in its ordinary legal signification, a fee is vested in the first taker. This is the effect and force of the rule in Shelley's Case, 1 Colo. 88, and that rule enters into our law as a rule of property. Sorden v. Gatewood, 1 Ind. 107; Doe v. Jackman, 35 Ind. 116; Andrews v. Spurlin, 35 Ind. 262; Gonzales v. Barton, 45 Ind. 295; Maxwell v. Featherston, 83 Ind. 339. If the will under discussion is governed by that rule, Samuel B. Mann, the first taker, took an estate in fee. Whether the will is or is not governed by that rule depends upon the answer to the question whether there is anything in the situation of the parties, or in the context of the instrument, plainly indicating an intention to assign to the words of limitation a meaning different from their ordinary legal signification.

There is a material difference between deeds and wills, and much more liberality is exercised in the construction of the latter instruments than in the former, for, where a will is presented for construction, the chief effort of the courts is to discover and carry into execution the intention of its author, and to this end minor considerations are subordinated. Brooks v. Evetts, 33 Tex. 732. But, while this is true, it also true, that where words of definite legal meaning are employed, they will be assigned that meaning, unless the context of the instrument makes it plain that the testator employed them in a different sense.

In Nelson v. Davis, 35 Ind. 474, the court quoted the statement of Chancellor Walworth, made in Schoonmaker v. Sheely, 3 Denio 485, that "The word children, in its primary or natural sense, is always a word of purchase, and not a word of limitation; and the word issue is very frequently a word of purchase also. But heirs, and heirs of the body, are in their primary and natural sense words of limitation, and not of purchase." The definition adopted by the Chancellor is one that has long been recognized and accepted by the courts, and the strictness with which they have adhered to this definition has exercised a potent influence upon the disposition of lands by deeds and wills. 2 Redf. Wills, 67; 3 Jarman Wills (5

Am. ed.) 115. The word "heirs" written in a deed or will is one of great power, and its force is not impaired by the mere use of negativing or restraining words. Fearne expresses this doctrine in very strong words, for he declares that "the most positive direction" will not defeat the operation of the rule in Shelley's Case. 2 Fearne Remainders, section 453. It may be that this statement of the law is somewhat too strong under the doctrine of later cases, but certainly the law is that mere negativing words can not restrain or impair the force of the word "heirs." 3 Jarman Wills (5 Am. ed.) 115.

We have no doubt that the word "heirs" may be construed to mean children where it is plain that the testator employed it in that sense. Ridgeway v. Lanphear, post, p. 251; Hull v. Beals, 23 Ind. 25; Star Glass Co. v. Morey, 108 Mass. 570; Scott v. Guernsey, 48 N.Y. 106; Urich's Appeal, 86 Pa. 386; S. C., 27 Am. R. 707; King v. Beck, 15 Ohio 559; Guthrie's Appeal, 37 Pa. 9; Jordan v. Adams, 9 C. B. (N. S.) 483; North v. Martin, 6 Sim. 266. While it is true that the word "heirs" may be explained to mean children, it is also true that this meaning can not be assigned to the word unless it very clearly appears that it was employed by the testator in that sense. The courts have used very strong language upon this subject. In one case Lord Redesdale said: "The rule is, that the technical words shall have their legal effect, unless, from subsequent inconsistent words, it is very clear that the testator meant otherwise." Jesson v. Wright, 2 Bligh (H. L. Cas.) 1, 56. Stronger still is the statement of Lord Denman, who said: "Technical words, or words of known legal import, must have their legal effect, even though the testator uses inconsistent words, unless those inconsistent words are of such a nature as to make it perfectly clear that the testator did not mean to use the technical words in their proper sense." Doe v. Gallini, 5 Barn. & Adol. 621. Redfield says: "Conjecture, doubt, or even equilibrium of apparent intention, will not suffice." 2 Redf. Wills (2 ed.) 67; Guthrie's Appeal, supra; Jordan v. Adams, supra; Poole v. Poole, 3 B. & P. 620; Doebler's Appeal, 64 Pa. 9.

The language employed by the testatrix in the final clause of the last item of the will is, "upon the happening of which event it is my will and pleasure that the fee simple of said land shall then vest absolutely in the said Samuel B. Mann and his heirs, and may by him or them be disposed of as he or they may judge best for his or their interest," and this clause certainly does not evince an intention to use the word "heirs" as meaning children; so far, indeed, is it from doing this that it does the exact opposite, for it in terms vests a fee in Mann and his heirs and declares that he may dispose of the estate, or that his heirs may do so. If we ascribe to this language its usual force and effect, we are carried to the conclusion that the testatrix intended, that upon the happening of the designated event Samuel B. Mann should be invested with an absolute power of disposition, but that if he died without exercising this right, then his heirs should be invested with it, and this conclusion makes it apparent that the word "heirs" was employed in its technical sense. The right of disposition is first vested in Samuel B. Mann, and this is in exact agreement with the technical import of the term "heirs," as well as with the phrase, "the fee simple of said land shall then vest absolutely in the said Samuel B. Mann and his heirs." The language employed in describing the power of alienation does not import a joint power, but a several one; for the disjunctive form of the conjunction is used, and the effect is to declare that either may dispose of the estate, postponing, however, the rights of those who may become heirs to those of the person first named. As Mann could have no heirs during his life, the power of disposition was first and fully in him as the first taker, and in his heirs only upon his decease, and, without any express provision to that effect, this would have been the force of the words "fee simple" as well as of the word "heirs." 1 Preston Estates, 71, 72, 73.

Superadded words, which merely describe or specify the incidents of the estate created by such a word of limitation as "heirs," do not cut down the interest of the devisee. If we regard as explanatory the words which follow the term "his heirs" in the will under examination then, unless we wrench them from their natural meaning, we must treat them as more specifically describing the duration of the estate devised, for these words do not detract from the force of the word "heirs," but, if that be possible, add to its force, because they describe an absolute power of alienation, which is one of the chief incidents of the estate which the use of the word "heirs" operates to create. It may not have been necessary to describe a power incident to the estate created, but that an unnecessary thing was done can not break the force of what the books often say is "a powerful word." "The proper and technical mode of limiting an estate in fee simple," says Mr. Jarman, "is to give the property to the devisee and his heirs or to him, his heirs and assigns forever." 3 Jarman Wills, 30. These words were here used, and, as we have seen, it is the duty of the courts to affix to technical words their usual...