Vaubel v. Lang, 11404.

• Decision Date: 19 June 1923
• Docket Number: No. 11404.,11404.
• Citation: Vaubel v. Lang, 81 Ind.App. 96, 140 N.E. 69 (Ind. App. 1923)
• Parties: VAUBEL et al. v. LANG et al.
• Court: Indiana Appellate Court

81 Ind.App. 96

140 N.E. 69

VAUBEL et al.

v.LANG et al.

No. 11404.^*

Appellate Court of Indiana, Division No. 1.

June 19, 1923.

Appeal from Circuit Court, Gibson County; R. C. Baltzell, Judge.

Action by Henry Vaubel and others against William Lang and others, wherein William Lang and others filed separate cross-complaints. From judgment for the named defendant on his cross-complaint, after withdrawal of the complaint and all other cross-complaints, and demurrer by plaintiffs to such cross-complaint, plaintiffs appeal. Affirmed.

Brill, Hatfield & Brady, of Evansville, for appellants.

William Espenchied, of Mt. Vernon, and Duncan & Duncan, of Princeton, for appellees.

BATMAN, J.

Appellants filed their complaint against appellees to quiet their title to the real estate involved in this action. Certain of the appellees, including William Lang, filed their separate cross-complaints against appellants. Appellants filed a demurrer to the cross-complaint of said William Lang, and, pending the same, the complaint and all other cross-complaints were withdrawn. The court thereupon overruled said demurrer, and, appellants refusing to plead further, judgment was rendered in favor of said cross-complainant, quieting his title to the real estate in question. The action of the court in overruling said demurrer constitutes the only error assigned on appeal.

The cross-complaint of said William Lang alleges, in substance, among other things:

That he is the owner of the real estate in question (describing it). That for more than 50 years prior to July 20, 1908, one Henry Vaubel, Sr., had been the owner and in possession of said real estate. That during said time he resided thereon continuously, and the same was known as his homestead. That on said date he departed this life testate, disposing of said real estate by item 2 of his will, which reads as follows:

“I give and devise to my grandchildren Elizabeth and Hulda Vaubel, children of my son Moritz, my homestead containing 118 acres more or less, to have and to hold the said real estate subject to the following conditions, viz., in case either one should depart this life leaving no child or children surviving then her share shall go to her sister and in the event both should depart this life leaving no child or children surviving, then said real estate shall descend and go to my heirs. Said children shall not dispose of or encumber said real estate until they arrive at the age of 21 years, after which they may convey the same in fee simple, said real estate is described as follows, to wit: Part of the northeast quarter of section nine (9) township six (6) range twelve (12) estimated to contain 118.76. I give and bequeath to my grandchildren Elizabeth and Hulda Vaubel, children of my deceased son, Moritz, the sum of $150.00 each.”

That said will was duly admitted to probate and fully executed, and the estate of said decedent was thereafter adjudged finally settled. That the said Elizabeth Vaubel was born on October 25, 1895, and died on August 13, 1917, and the said Hulda Vaubel was born in October, 1898, and died on February 13, 1921. That neither was ever married, and each died intestate and without issue. That immediately after the death of said testator, the above-named legatees entered into the possession of said homestead, containing about 118 acres, and they and their grantees have held possession thereof continuously until the commencement of this action. That after said Elizabeth Vaubel reached the age of 21 years, she executed to one Kate S. Vaubel a deed, with covenants of warranty, for an undivided one-half of said real estate, subject to a life estate in her favor. That after said Hulda Vaubel reached the age of 21 years she and said Kate S. Vaubel, executed to the cross-complainant a deed with covenants of warranty, for all of said real estate. That each of said deeds were executed for a valuable consideration, and were duly acknowledged and properly recorded soon after their execution. That said cross-complainant, immediately after the execution of the last-named conveyance, entered into the possession of the real estate in question, and so remained continuously, until the commencement of this action. That appellants as heirs of said Henry Vaubel, Sr., and as devisees under his said will, claim some right, title, or interest in and to said real estate, which is unfounded, and a cloud upon cross-complainant's title. That appellants do not have, or claim to have, any title or interest in said real estate, other than as such heirs and devisees. That cross-complainant does not have, or claim to have any right to or interest in said real estate, other than the right, title, and interest conveyed to him by the deeds above mentioned.

[1] We will first determine whether the event mentioned in said second item of the will, which, if it occurred, would cause the real estate in question to descend to the heirs of said testator, referred to the death, at any time, of said Elizabeth and Hulda Vaubel leaving no child or children surviving, or to a time prior to the death of the testator. The rule to be observed in determining this question may be stated as follows: Where real estate is devised in terms denoting an intention that the primary devisee shall take a fee on the death of the testator, coupled with a devise over in case of his death without issue, courts will hold that the words refer to a death without issue during the lifetime of the testator, unless the contrary appears from the will itself. Fowler v. Duhme (1895) 143 Ind. 248, 42 N. E. 623;Quilliam v. Union Trust Co. (Ind. App. 1921) 131 N. E. 428, 132 N. E. 614;Watson v. Tracy (Ind. App. 1921) 133 N. E. 411.

[2] An application of this rule leads us to conclude that the testator did not omit in the instant case to indicate when the contingency in which the real estate devised should go to his heirs, as he provided that the primary devisees, Elizabeth and Hulda Vaubel, were-

“to have and to hold the said real estate subject to the following conditions, viz.: In case either one should depart this life leaving no child or children surviving then her share shall go to her sister and in the event both should depart this life leaving no child or children surviving, then said real estate shall descend and go to my heirs.”

The fact that they, as devisees, were “to have and to hold” said real estate, subject to certain conditions, a thing they could not do until after the death of the testator, makes it clear that it was not his intention that the occurrence of the event in question should be confined to the time preceding his death. We are fully justified in so holding, without reference to the tendency of courts to seize upon slight circumstances disclosed by wills, in order to avoid the necessity of supplying an omission as to the time of such event, under an arbitrary and artificial rule. First Nat. Bank v. De Pauw (C. C.) 75 Fed. 775, cited with approval in Quilliam v. Union Trust Co., supra.

[3] Having made the determination stated above, it would clearly be our duty to reverse the judgment were it not for the presence of the following provision in said item 2 of the will under consideration:

“Said children shall not dispose of or encumber said real estate until they arrive at the age of 21 years, after which they may convey the same in fee simple.”

[4] In seeking to ascertain the intention of the testator we must consider this provision in its relation to other portions of the will, and, if possible, give it effect. Hardy v. Smith (1919) 71 Ind. App. 688, 123 N. E. 438;Fenstermaker v. Holman (1901) 158 Ind. 71, 62 N. E. 699. Appellants have evidently recognized this, and have presented a number of reasons in support of their contention that such provision does not have the effect of depriving them of the title to said real estate, under the facts alleged. They assert that the provision of the clause under consideration, which undertakes to suspend the power of alienation, is in conflict with the statute against perpetuities, and hence void, citing section 3998, Burns' 1914. So much of said section as is applicable to the facts of the instant case reads as follows:

“The absolute power of aliening lands shall not be suspended by any limitation or condition whatever, contained in any grant, conveyance or devise, for a longer period than during the existence of a life or any number of lives in being at the creation of the estate conveyed, granted, devised and therein specified. ***”

[5][6] It is apparent that if the words “said children,” by which said clause is introduced, refers to the possible child or children of said Elizabeth and Hulda Vaubel, then appellants' contention should be sustained, but if reference is thereby made to said Elizabeth and Hulda themselves, we must hold otherwise, as the suspension of the power of alienation is not “for a longer period than during the existence of a life or any number of lives in being at the creation of the estate.” Matlock v. Lock (1906) 38 Ind. App. 281, 73 N. E. 171. We are inclined to hold as a matter of first impression, that the words under consideration refer to said Elizabeth and Hulda Vaubel, as they are designated in the first part of said item 2, as “children of my son Moritz,” while their possible issue are designated as “child or children.” But, when we go beyond the matter of first impression, we are forced to conclude that the testator intended thereby to refer to said Elizabeth and Hulda, and not their possible issue, under the well-settled rule that where language in a...