Wright v. Charley

• Decision Date: 14 October 1891
• Docket Number: 15,273
• Citation: 28 N.E. 706,129 Ind. 257
• Parties: Wright et al. v. Charley
• Court: Indiana Supreme Court

28 N.E. 706

129 Ind. 257

Wright et al. v. Charley

No. 15,273

Supreme Court of Indiana

October 14, 1891

From the Harrison Circuit Court.

Judgment affirmed.

G. W Denbo, N. R. Peckinpaugh and H. C. Hays, for appellants.

W Cook, W. Ridley, W. N. Tracewell and R. J. Tracewell, for appellee.

OPINION

Coffey, C. J.

This was an action brought by the appellants against the appellee in the Harrison Circuit Court for the partition of the land described in the complaint, and to quiet title to such land as against any claim thereto by the appellee. The material facts in the case, as set forth in the complaint, and admitted by the demurrer thereto, are that Eli Wright, in the year 1873, executed his last will and testament, by which he made disposition of all his property both real and personal. He died in April, 1874, and his will was admitted to probate in May thereafter. By the second clause in his will he devised to his oldest son, William M., certain property to be taken as his full share of the estate.

The third clause makes a like devise to his next oldest son, James H. Wright.

The fifth clause provides that the testator's five unmarried children, namely, Emma J., Rildy R., Addy, Samuel and Peter S., shall reside together on the home farm until Peter shall arrive at the age of twenty-one years.

The sixth clause provides for the sale of the personal property remaining on hand at the time Peter arrives at the age of twenty-one, and for a distribution of the proceeds.

The seventh and eighth clauses are as follows:

"Item Seventh. It is my will that all my real estate remaining, not devised to my son James H., be equally divided, in value, between my children, Emma J., Rildy R., Addy, Samuel and Peter S., said division to be made by my executors, if living, or if not living, the survivors, or by my administrator with the will annexed, as the case may be, with the assistance of one or two discreet persons, competent to make such partition; the preference of the homestead to be given to my son Samuel.

"Item Eight. It is my will, and I hereby direct, that in case of the death of either of my children, except William M., and they leave no children, the property bequeathed to them by this my last will and testament be divided between my children, except William M., and division made in accordance with my desire in this will by my executors."

All the persons named in the will survived the testator. The land was divided by the executors pursuant to the terms of the will, and to perfect the partition the devisees executed deeds to each other. Rildy R. married the appellee, David Charley, and died intestate in the year 1888, without child or children. The appellants claim the land set off to her under the provisions of clauses seven and eight of the will of Eli Wright, while the appellee claims as the surviving husband and only heir of Rildy R., deceased.

The respective claims of the parties depend upon the construction of these clauses in the will of Eli Wright; the appellants contending that the devisees therein named took a defeasible fee, while the appellee contends that they each took a fee absolute.

It is the well-settled doctrine that the courts of this country will so construe a will, when not inconsistent with the intention of the testator, as to prevent the title to real estate from remaining contingent; and, unless there are plain indications of a contrary intent, will consider the entire title as vested in those claiming under the will, rather than in abeyancc. Wills v. Wills (Ky.), 85 Ky. 486, 3 S.W. 900; Heilman v. Heilman, ante, p. 59.

In accord with this rule, it is said by Mr. Jarman to be an established rule that where a bequest is simply to one person, and, in case of his death, to another, the primary devisee, surviving the testator, takes absolutely. This rule applies to both personal and real...