Trammel v. Trammel

• Decision Date: 12 October 1897
• Citation: 148 Ind. 487,47 N.E. 925
• Parties: TRAMMEL v. TRAMMEL.
• Court: Indiana Supreme Court

148 Ind. 487

47 N.E. 925

TRAMMEL

v.TRAMMEL.

Supreme Court of Indiana.

Oct. 12, 1897.

Appeal from circuit court, Huntington county; C. W. Watkins, Judge.

Partition by William F. Trammel against Clell A. Trammel. From a judgment for defendant, plaintiff appeals. Affirmed.

T. J. Lucas and C. K. Lucas, for appellant. Branyan & Branyan, for appellee.

MONKS, J.

Appellant brought this action for partition of real estate. In 1890, John M. Trammel conveyed, by deed, to appellant, his son, 40 acres of real estate, as an advancement. At that time, John M. Trammel owned 120 acres of land besides that conveyed, and had two children living, appellant and John A. Trammel, and a grandchild, the appellee, Clell A. Trammel, the son of his son Thomas A. Trammel, deceased. John M. Trammel died in 1894, leaving a will, which was duly admitted to probate. He owned said 120 acres of real estate, and personal property of the value of $500, at the time of his death. By said will, he devised said 120 acres of land to his son John A. Trammel, upon condition that he pay to appellee, Clell A. Trammel, $800 when he (said Clell A.) should arrive at the age of 21 years, and provided, further, that said John A. Trammel, who was a minor, should live until he was 21 years of age, and, if said John A. Trammel should die before arriving at the age of 21 years, then it was provided that the whole estate should descend to the heirs of John M. Trammel, the same in all respects as if no will or devise had been made. The personal property was not disposed of by said will, nor did the same contain any other provision than that as above set forth. John A. Trammel died, intestate, in 1895, before he had arrived at the age of 21 years. Appellant claims that he is entitled to the undivided one-half in value of said 120 acres of real estate, while appellee contends that, in the partition of said real estate, appellant must be charged with the value of the 40 acres conveyed to him in 1890, as an advancement. The court below held the law to be as insisted by appellee, and rendered judgment accordingly.

We think the law as held by the trial court correct. It is true that, when a will is made, all previous advancements are extinguished, unless the same are saved by the will; and this is held upon the ground that the testator has graduated his legacies with reference to such prior advancements. Jones v. Richardson, 5 Metc. (Mass.) 247, 253. In this case, however, the testator provided...