Swails v. Swails

• Decision Date: 09 December 1884
• Docket Number: 11,939
• Citation: 98 Ind. 511
• Parties: Swails et al., Executors, v. Swails et al
• Court: Indiana Supreme Court

98 Ind. 511

Swails et al., Executors, v. Swails et al

No. 11,939

Supreme Court of Indiana

December 9, 1884

From the Decatur Circuit Court.

Judgment affirmed.

J. K Ewing and C. Ewing, for appellants.

W. A Moore and J. Marshall, for appellees.

OPINION

Elliott J.

Francis M. and William H. Swails are the executors of the will of Nathan P. Swails, deceased, and filed the petition, upon which these proceedings are based, praying for the sale of the lands of which the testator died seized. Nathan G. Swails is a grandson and devisee of Nathan P. Swails, and claims the land under the devise contained in the will. At the time the will was executed the testator owned one hundred and twenty-four acres of land, and in his will disposed of all of it, devising to John Swails and his heirs eighty-eight acres and to Nathan G. Swails thirty-six acres. After the execution of the will Nathan P. Swails, the testator, executed two deeds; one of them conveyed to John Swails for life and his children in fee sixty acres off the north side of the tract, and the other conveyed to Nathan G. Swails forty acres immediately south of the parcel conveyed to John, leaving the twenty-four acres described in the will not conveyed. The contest is as to the ownership of the twenty-four acres not conveyed.

Counsel agree that one of the controlling questions in the case is this: Did the conveyances executed by the testator subsequent to the execution of the will work a revocation? The question is controlled by our statute, which reads thus:

"A conveyance, settlement, deed, or other act of a testator, by which his estate or interest in property previously devised by him shall be altered but not wholly divested, shall not be deemed a revocation of such devise, but the same shall pass to the devisee or legatee the actual estate or interest of the testator which would otherwise descend to his heirs, unless such devise shall be otherwise revoked, or unless, in the instrument by which such alteration is made, the intention is declared that it shall operate as a revocation of such previous devise; but if, in any case, the provisions of the instrument by which such alteration is made are wholly inconsistent with the terms and nature of such previous devise, such instrument shall operate as a revocation thereof, unless such provisions depend on a condition or contingency, and such condition be not performed or such contingency do not happen." R. S. 1881, sec. 2566.

The old law was that the testator must be seized of the land at the time of making the will, and that the seizure must continue until the time of his death. An alienation of the land, by force of this rule, operated as a revocation of the will. 1 Jarman Wills (5 Am. ed.), 308. During the reign of the present Queen of England, the English law has been essentially changed. 1 Victoria, chapter 26, section 23. But as we have a statute governing the subject, we can not look elsewhere except for assistance in construing the legislative enactment. The principal assistance which we can secure is afforded by the fact that the Legislature deemed the rule of the common law an evil, and enacted the statute to remedy it. In construing an act of the Legislature, it is always proper to consider the evil which it was framed to destroy, as well as the object which it was intended to accomplish. Hedrick v. Kramer, 43 Ind. 362; Bell v. Davis, 75 Ind. 314. The evil which our statute is intended to prevent is the injustice worked by the old rule, and the object intended to be accomplished is to prevent a partial alienation from destroying the devise except in cases where the purpose of the testator to give that effect to the alienation is manifested, or where the provision by which the alienation is made is inconsistent with the terms or nature of the devise. It is clear that it is not every alteration in the estate of the testator in the property, nor every partial alienation, that will revoke the devise. It is not enough to show a change in the testator's estate, or to show a partial alienation, and the common law authorities which counsel cite can not prevail where there is such a statute as ours.

There is nothing in the deeds showing an intention to revoke or modify the will, and it can not be said that there is anything in the provisions of the instruments making the alteration in the estate of the testator, which is inconsistent "with the terms and nature of the devise." Nor is there anything in the instruments which wholly divests the title of the devisor. As there are no express words indicating an intention to revoke the will, and as there is no inconsistency between the terms and nature of the devise, and the deeds making the partial alienation, the devisee took the estate in the land not conveyed, which, but for the devise, would have passed by due course of descent to the heirs of the devisor, unless there is something in the nature of the transaction in which the deeds were executed which produces an inconsistency between the deeds and the will.

We are unable to perceive any inconsistency in the acts of the testator. It may well be that he elected to vest an indefeasible estate in part of the land in his grandson, and also devised to him the land described in the will, or so much of it as remained subject to the will when it became operative. An estate vested by a present conveyance is essentially different from a provision made by an ambulatory instrument like a will. The deeds do not purport to operate upon the twenty-four acres described in the devise; that is not disposed of, and the just inference is that the testator meant to hold that part of his land, in order that at his death his will might carry it to his...