Taylor v. Stephens

• Decision Date: 23 June 1905
• Docket Number: 20,666
• Citation: 74 N.E. 980,165 Ind. 200
• Parties: Taylor v. Stephens, Administrator, et al
• Court: Indiana Supreme Court

74 N.E. 980

165 Ind. 200

Taylor v. Stephens, Administrator, et al

No. 20,666

Supreme Court of Indiana

June 23, 1905

From Warren Circuit Court; Joseph M. Rabb, Judge.

Petition by John C. Stephens as administrator of the estate of William N. Swank, deceased, against Emily J. Taylor and others. From a decree for plaintiff, defendant Emily J. Taylor appeals. Transferred from Appellate Court under subd. 2, § 1337j Burns 1901, Acts 1901, p. 565, § 10.

Affirmed.

C. C Holland, for appellant.

C. V McAdams and Isaac E. Schoonover, for appellee Stephens.

OPINION

Gillett, J.

This was a proceeding which was instituted by the administrator of William N. Swank, deceased, to sell real estate to pay debts and the widow's statutory allowance.

It appears from the petition that in the year 1872 James C. Swank departed this life testate, the owner in fee of eighty acres of land, leaving surviving him his widow and four children, one of whom was said William N. Swank. At the time of the bringing of this proceeding the widow of said James C. Swank still survived. The will of said last-named decedent contained the following provision: "I also desire that my said wife, Melissa, have the use and occupancy of any and all lands that I may own at my decease during her natural life, on the condition that she pay the taxes on, and keep said lands free from encumbrances, and at the decease of my said wife I desire that said lands be owned equally and jointly by my children, Emily J. Taylor, William N. Swank, John E. Swank and Sarah J. Swank, or in case of the decease of any of said children, his or her share to descend to the heirs of their bodies, if any, and if not, to those surviving."

Certain practice questions are urged by appellee Stephens, but as it is agreed by the parties that the foundation questions in this case go to the construction of the provision of said will which is above set out, we proceed to the consideration of the latter questions.

Did William N. Swank, upon the death of his father, have a vested remainder in one-fourth of said land, subject to a particular estate in the widow, Melissa? The law favors an interpretation which will permit estates to vest at the earliest possible moment, and, to that end, words of survivorship in a will are construed as referring to the death of the testator in all cases where the words of the instrument are not such as clearly to show that they refer to a subsequent date. Harris v. Carpenter (1887), 109 Ind. 540, 10 N.E. 422; Hoover v. Hoover (1889), 116 Ind. 498, 19 N.E. 468; Amos v. Amos (1889), 117 Ind. 37, 19 N.E. 543; Bruce v. Bissell (1889), 119 Ind. 525, 12 Am. St. 436, 22 N.E. 4; Heilman v. Heilman (1891), 129 Ind. 59, 28 N.E. 310; Wright v. Charley (1891), 129 Ind. 257, 28 N.E. 706; Fowler v. Duhme (1896), 143 Ind. 248, 42 N.E. 623; Tindall v. Miller (1896), 143 Ind. 337, 41 N.E. 535; Moores v. Hare (1896), 144 Ind. 573, 43 N.E. 870; Aspy v. Lewis (1899), 152 Ind. 493, 52 N.E. 756. This court said in Amos v. Amos, supra: "We affirm, as an established principle, that the law not only favors the vesting of remainders, but it also presumes that words postponing the estate relate to the beginning of the enjoyment of the remainder and not to the vesting of that estate."

The rule of interpretation above stated rests not alone in public policy, but it finds a justification in the fact that in most wills wherein language is used which, upon superficial consideration, might seem to lead to the conclusion that it was the design of the testator to postpone the vesting of the estate beyond his own death, an adequate explanation is found in the general tendency of testators to look forward to the time when the devisee will enjoy the estate in possession, and to overlook the proposition that it is necessary that at or prior to the time of entering upon the possession the right to the property should vest. These views find expression in McArthur v. Scott (1884), 113 U.S. 340, 378, 5 S.Ct. 652, 28 L.Ed. 1015, where it was said: "For many reasons, not the least of which are that testators usually have in mind the actual enjoyment rather than the technical ownership of their property, and that sound policy as well as practical convenience requires that titles should be vested at the earliest period, it has long been a settled rule of construction in the courts of England and America that estates, legal or equitable, given by will, should always be regarded as vesting immediately, unless the testator has by very clear words manifested an intention that they should be contingent upon a future event."

As has been often announced, the intention of the testator is to prevail where it does not conflict with the law, but the fact is not to be forgotten that, in the disposition of the nebula of will cases, the courts have evolved rules of construction which can scarcely be said to be subsidiary to the intention of the testator, since it must be presumed, in the absence of language in the will repelling the inference, that he acted in the light of the settled meaning which the law attached to his words. Fowler v. Duhme, supra; Leathers v. Gray (1888), 101 N.C. 162, 7 S.E. 657, 9 Am. St. 30.

Of course, there is no iron rule of law binding words of survivorship to the time that the will takes effect, and therefore the courts will look to the language of the instrument in endeavoring to ascertain the intention of the testator; but the effect of the rule, prescribing, as it does, the meaning of the will in the absence of a clear expression to the contrary, is to interdict the effort to draw up the intention of the testator from the depths of his words after it is perceived that the intent is not clear.

We have found no difficulty in reaching the conclusion in this case that the children of the testator took a vested remainder upon the death of the latter. The whole trend of Indiana authority supports this view, of which the following cases are particularly in point upon the facts: Harris v. Carpenter, supra; Hoover v. Hoover, supra. It is true that in the will before us the testator expresses his "desire that said lands be owned" by his children "at the decease of" his wife, but this language is by no means as persuasive of a purpose upon his part to postpone the vesting of the remainder as in the wills under construction in the two cases last cited, wherein it appears that after the creation of a life estate in the wife the testator had provided that upon her death the real estate should "pass to" the second taker. The provision in the will before us that the lands are to "be owned" by the children upon the decease of the testator's wife does not create a necessary implication that the fee was then to vest, for the language may be regarded as referring to the period when the children should enjoy the estate. That this idea was the one which was in the foreground of the testator's mind in making the devise in question may be inferred from the fact that he wholly omits in terms to devise his wife anything, but expresses his undoubted intention that she should have a life estate by the statement of his desire that she should "have the use and occupancy" of the property during her life. It was said in Doe v. Considine (1867), 6 Wall. 458, 475, 18 L.Ed. 869: "Adverbs of time--as where, there, after, from, etc.--in a devise of a remainder, are construed to relate merely to the time of the enjoyment of the estate, and not to the time of the vesting in interest."

We have not failed to observe that in the latter part of the language quoted the will provides that in case of the decease of a child his share shall descend to the heirs of his body. This does not prevent the view that the class was to be ascertained at the death of the testator. The children were in esse, and it is evident that, if the words "heirs of their bodies" were not used as words of limitation, the gift to such heirs was substitutional, and as said in Williams, Real Prop. (17th ed.), 287: "The heirs are no objects of the testator's bounty, further than as connected with their ancestor." It is to be recollected that the testator was providing for the disposition of his estate by will, and, even if the bequest were to operate as an executory devise (a construction not favored), it would still follow that the case was one wherein the testator was by will giving direction concerning his property; and therefore we would not be doing violence to the testator's intention, as manifested by his language, to hold that the word "descend" was used in the...