Watson v. Tracy

• Court: Indiana Appellate Court
• Writing for the Court: BATMAN
• Citation: Watson v. Tracy, 77 Ind.App. 163, 133 N.E. 411 (Ind. App. 1921)
• Decision Date: 20 December 1921
• Docket Number: No. 10925.,10925.
• Parties: WATSON v. TRACY et al.

77 Ind.App. 163

133 N.E. 411

WATSON

v.TRACY et al.

No. 10925.

Appellate Court of Indiana, Division No. 1.

Dec. 20, 1921.

Appeal from Circuit Court, Johnson County; Fremont Miller, Judge.

Action by Gertrude V. Watson against Leo C. Tracy and others. From an adverse judgment, plaintiff appeals. Affirmed.

Wm. E. Deupree, of Franklin, and L. Ert Slack and George G. Rinier, both of Indianapolis, for appellant.

Featherngill & Drybread, of Indianapolis, for appellees.

BATMAN, P. J.

Appellant filed her complaint against appellees to quiet her title to certain real estate. The several demurrers of appellees thereto were sustained. Appellant refused to plead further, and judgment was thereupon rendered against her for costs. These rulings of the court are assigned as errors, and form the basis of this appeal. The complaint is in a single paragraph and alleges, in substance, among other things, that Mathew J. Tracy, the grandfather of appellant, executed his last will on October 5, 1909, and a codicil thereto on January 27, 1916; that he died on May 13, 1917, the owner of the south half of the southwest quarter of section 15, township 13 north, range 4 east, containing 80 acres, more or less; that said will and codicil were duly admitted to probate in the proper court on June 30, 1917, and by the terms of the former said real estate was devised to her; that two of the appellees are her children, one having been born on June 6, 1914, and the other on January 26, 1916; that two of the appellees are the children of their coappellee Leo C. Tracy, one having been born on September 11, 1916, and the other on May 2, 1919; that appellees Louis F. Tracy and James B. Tracy are the sons of said testator, and the remaining appellees are their children; that by the terms of said will appellant is the owner of the above-described real estate in fee simple, and entitled to have her title thereto quieted against all of the appellees. Copies of said will and codicil were made parts of said complaint. The provision of the will on which appellant relies for her title reads as follows:

“Item III. I give, devise and bequeath to my granddaughter, Gertrude V. Watson on the terms and conditions hereinafter set forth the following described real estate in Johnson county, Indiana, to wit: The south half (1/2) of the southwest quarter (1/4) of section fifteen (15) township thirteen (13) north, range four (4) east, containing eighty (80) acres, more or less. And provided that this bequest shall be subject to a charge in the sum of seven hundred fifty (750) dollars against said real estate in favor of my grandson, Leo C. Tracy, which sum shall be paid to said Leo C. Tracy by the said Gertrude V. Watson. And provided further that if my said granddaughter shall die at any time either before or after my death, leaving no child or children or the descendants of any child or children surviving her, at her death, then I give, devise and bequeath the above described real estate to my grandson, Leo C. Tracy, if he shall then be living. And if my said granddaughter, Gertrude V. Watson, shall die at any time, either before or after my death, leaving no child or children or the descendants of any such child or children surviving her at the time of her death and the said Leo C. Tracy shall not be living at the death of said Gertrude V. Watson and shall have left no descendant or descendants surviving him then I give, devise and bequeath the above described real estate to my sons, Louis F. Tracy and James B. Tracy, share and share alike or to their descendants. Their descendants to take jointly the share their father would take if living.”

Item IV of the will is the same as item III, except that it describes different land, names Leo C. Tracy as the devisee thereof, contains the name of appellant where the name “Leo C. Tracy” appears in item III, and makes no mention of any charge against the land therein devised. The above-named codicil contains nine items, one of which annuls the provision in item III of the will with reference to the charge in favor of Leo C. Tracy against the land thereby devised to appellant.

[1][2] The correctness of the court's rulings on the several demurrers to the complaint requiresa construction of the third item of the will of Mathew J. Tracy, deceased, set out above. Appellant asserts that it should be so construed as to give her an absolute fee-simple estate in the land in question. It is apparent, however, that this cannot be done, if effect is given to the provisions subjoined to the devising clause of said item. We cannot refuse to give such provisions effect under the rule approved in the case of Fowler v. Duhme, 143 Ind. 248, 42 N. E. 623, “that 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, the words refer to a death without issue during the lifetime of the testator, and that the primary devisee, surviving the testator, takes an absolute estate in fee simple,” as such rule only applies where the testator omits to state the time, when the contingency in which the real estate devised shall go to others must happen. When this occurs, the law supplies the omission by holding that the time shall be directed to a period before the testator's death, as stated on page 278 (632) of the opinion in the case above cited. It will be observed that the testator in the instant case has not omitted to state when the contingency in which the real estate devised...