Wood v. Robertson

• Decision Date: 16 February 1888
• Docket Number: 13,014
• Citation: 15 N.E. 457,113 Ind. 323
• Parties: Wood et al. v. Robertson et al
• Court: Indiana Supreme Court

15 N.E. 457

113 Ind. 323

Wood et al. v. Robertson et al

No. 13,014

Supreme Court of Indiana

February 16, 1888

From the Monroe Circuit Court.

Judgment affirmed.

J. P Baker, J. W. Buskirk and H. C. Duncan, for appellants.

W. P Rogers and J. E. Henley, for appellees.

OPINION

Elliott, J.

The provisions of the will over which this controversy is waged are these: "I give and devise to my beloved wife the farm on which I now reside, as well as all my other real estate of which I may die legally possessed; also, all the personal property of whatever description of which I may die the owner, to have and to hold during her natural life; and at her death it is my will that whatever remains of my estate, whether real or personal property, in the hands of my wife, shall be equally divided among my children then living and the descendants of such as may be dead, share and share alike, taking into consideration all advancements which may have been made either by myself or my wife. I do hereby nominate and appoint my beloved wife executrix of this, my last will and testament. I authorize and empower her, if it shall be necessary in order to pay my debts or to make advancements to my children, to sell by private sale, or in such manner and upon such terms of credit as she may think proper, all or any part of my real estate or personal property, or both, and deed to purchasers to execute, acknowledge and deliver in fee simple."

The testator intended by this will to devise to his wife an estate for life, and to give his children living at her death, and the descendants of such as were then dead, a vested remainder.

It is true, the testator added to the life-estate a power of disposition, but this does not change the effect of the will upon property remaining in the possession of the widow at the time of her death. There is not here, as in Van Gorder v. Smith, 99 Ind. 404, an absolute power of disposition; on the contrary, the power is limited to a designated purpose. The clear implication is, that the unconsumed property vests in the children living at the time of the widow's death, and the descendants of those that were then dead. Goudie v. Johnston, 109 Ind. 427, 10 N.E. 296; Giles v. Little, 104 U.S. 291, 26 L.Ed. 745; Green v. Hewitt, 97 Ill. 113 (37 Am. R. 102).

If this conclusion be not correct, then all the provisions of the will concerning advancements, as well as the clear provision directing what disposition shall be made of property in the hands of the widow at the time of her death, must be thrust aside as meaningless. But these provisions are not without meaning, and were not idly written in the will, nor were they employed by mistake, and they can not, therefore, be disregarded. Shimer v. Mann, 99 Ind. 190 (50 Am. R. 82).

If the widow took the entire estate, then there would be no force in the provision respecting the disposition of the property in her hands at her death, so that the only reasonable conclusion is that she took a life-estate, with power of disposition, for the specific purpose of paying debts and making advancements. If this was her whole estate and interest, then, of necessity, the remainder must go, as the will directs, to the living children and the descendants of the dead. The nature of the remainder is therefore, not affected by the power of disposition given the life tenant, although the exercise of the power might change the property in which the remainder would vest. The power conferred on the life tenant does not change the character of the estate in expectancy, for that, as created by the will, is beyond the power of the tenant. Although it may have been within her power to change the property upon which the will must operate, she could not change the estate of the remainder-men. Whatever property was in the widow's possession at the time of her death the will fastened on, and the estate in expectancy became one in...