OPINION
Elliott, J.
The
theory of the appellant's complaint is that the real
property in controversy is subject to seizure upon judgments
rendered against the appellee Jesse Jones, and that his title
to the property, derived through his deceased wife, Louisa J
Jones, is in fee. The fifth paragraph of the answer of the
appellees avers that "In the year 1840
Jesse Jones married Louisa J. Norwood; that at the time of
said marriage neither of them had any property or estate;
that two children only were born of said marriage, namely,
the said Maria, now intermarried with said Foltz, and the
said Mary, now intermarried with the said Hawkins; that after
said marriage Jesse Jones acquired property from, and by
means of, his own industry up to the date of the making of
the will, hereinafter set forth. They also show that during
the time intervening between the marriage of said Louisa and
the making of the will hereinafter mentioned, the father of
said Louisa, Mr.
George Norwood, from time to time, gave to her, out of his
own estate, money and property, which she kept separate and
apart from the estate of her said husband, and controlled and
received and used the proceeds and income thereof as her own
at all times during her life; that heretofore, to wit, on the
23d day of April, A. D. 1874, the said Louisa owned the
property described in the complaint, and she, with her
husband, resided in certain property situate on Illinois
street in the city of Indianapolis, which was known as their
home, and which, with her other property, had been given to
her by her father; that on said day, she being in feeble
health, desired to make a will so as to secure her husband a
home during the remainder of his life in said homestead, and
to insure to their children during their lives all the rest
and residue and remainder of her estate of which she might
die seized. At that time said Jesse Jones, her husband, owned
valuable real estate in said city of the value of $ 50,000,
and was not in debt to any persons whatsover. And the said
Jesse greatly desired, in case his wife should first die, to
spend the remainder of his life in said family homestead, in
which they had theretofore resided for a great many years,
and wherein said children had been born and married; that to
carry out their mutual purposes and desires, it was then and
there mutually agreed, in consideration of their mutual
promises, that the said wife, Louisa, should make a will
giving to him the use and occupancy of said home during his
life, in consideration of which he would and
did, then and there, agree that she should devise all the
rest and residue of her estate to her said children and their
descendants; and thereupon, in fulfilment of said mutual
agreement and understanding, the said Jesse procured an
attorney at his own expense, to wit, fifty dollars, to write
a will expressive of their contract, agreement and mutual
desire, which will was, on said day, drafted and submitted to
them jointly, and accepted and approved by them jointly and
severally, as being in fulfilment of said agreement and the
true expression of their desires, which will was then and
there executed by the said Louisa, and with the full consent
of said Jesse, and in pursuance of their agreement
aforesaid."
These
allegations are followed by a copy of the will of Louisa J.
Jones, but we do not deem it necessary to set it forth in
full. It is sufficient to say that it makes a bequest to the
church of which she was a member, devises the fee of all of
her real estate to Howard M. Foltz, in trust for her
children, and makes the following provisions respecting her
husband:
"Article
3. I give and devise unto my dearly beloved husband, Jesse
Jones, my present house, being the premises and house wherein
we now reside, and known as number 488 North Illinois street,
in the city of Indianapolis, Marion county, Indiana, and
being parts of lots seven and eight in Blake's
subdivision of out-lot one hundred and seventy in said city,
to have and to hold during the term of his natural life, and
at his death to descend to my executor, as hereinafter
provided, to be held by him as herein directed.
"Article
4. I give and devise and bequeath unto my executor, Howard M.
Foltz, and to his successor or successors in and to said
trust, all the rest and residue of my real and personal
estate, to have and to hold in trust for my two daughters,
Mrs. Mary V. Foltz and Maria A. Hawkins, and their children
and descendants, in the manner and for the uses following,
that is to say:
"First. My executor shall have and
take possession, charge and control of all real estate held
by me at the time of my death, and of said house and lot No.
488 North Illinois street at the death of my husband, if he
shall survive me; and he shall use and rent the same in such
way and manner as he may deem best and most advantageous to
my estate, and out of the income thus arising from year to
year, he shall pay all taxes, assessments and repairs on or
against any or all of said real estate, and the net income
thus arising therefrom shall be held by him and used and
applied in the same way and manner as the income of my
personal estate.
"Second.
If, at any time during the life of my said husband, he and my
said daughters shall deem it best that said real estate, or
any part thereof, should be sold, and if, after the death of
my said husband, my said daughters, or the survivor of them,
shall so wish, then, on such wish being made known in writing
to my executor, the whole or such parts may be sold by said
executor, from time to time, under the order and supervision
of the proper court having jurisdiction over such executor,
as may be deemed best, and the proceeds realized from any and
all sales shall be by
said executor added to and held in trust for the uses and
applied in the same manner as my personal estate."
The
answer further alleges that Louisa J. Jones died on the 16th
day of February, 1879; that her will was duly admitted to
probate; that immediately after the will was probated, the
executor surrendered to Jesse Jones the property devised to
him; that the latter elected to receive the property in lieu
of his interest and right in the estate of his deceased wife,
and that it was so delivered to him by the children and
trustee of the testatrix.
The
first question in natural order is as to the proper
construction of the will. If it does not assume to divest
Jesse Jones of all interest in the estate of his wife, except
that especially devised to him, then, without further
inquiry, the principal and decisive point involved in this
controversy must be resolved in favor of the
appellant. Our conclusion is that it does assume to cut him
off from all other interest except that specifically devised
to him. We put our conclusion upon this general principle
Where a will assumes to dispose of the entire estate of the
testator, does dispose of it in terms, does devise the entire
estate in trust for beneficiaries expressly named, carves out
for a designated devisee a life-estate in a particular piece
of property, and directs that the remainder shall, after the
expiration of the life-estate, fall into the trust for the
beneficiaries designated, it devises to the person for whom
the life-estate is carved out that particular estate, and
nothing more. This principle is founded on the fundamental
one that undergirds all the doctrine of the construction of
wills, and this fundamental principle is, that the intention
of the testator rules upon all questions of construction. The
principle that courts must ascertain and execute the
intention of the testator is an elementary one, and needs no
more than its statement to command approval. To deny the
principle which we first stated involves a denial of this
cardinal principle which lies at the foundation of the chief
rule for the construction of wills; since it is evident that
if the fee in all the property of the testator is disposed of
by a devise to a trustee, nothing remains in the devisee to
whom a life-estate is devised except that particular estate,
for the remainder in fee goes with the other property into
the trust. It is inconceivable that a testator should, in
clear words, devise all his estate in fee to a trustee, and
yet vest in a devisee, to whom is given a life-estate, a fee
in part of the same property devised in trust for the
beneficiaries named. No reasoning can be valid which assumes
that all of the fee of all of the property of a testator can
be devised to a trustee, and yet a fee in one-third of the
property vest in a devisee to whom a life-estate is devised
in clear and unambiguous terms. To restate our original
proposition in a somewhat different form: Where all of the
fee of all of a testator's estate is devised to a
trustee, and a life-estate in part of it is carved out for a
designated devisee, with the remainder in fee
vested in the trustee, the devisee of the life-estate takes
no greater estate under the will than that carved out for
him. The will under examination would be thrown into
irremediable confusion, the intention of the testatrix
thwarted, and an irreconcilable inconsistency be produced
between its
provisions, if the theory of the appellant, that it devises a
life-estate to the husband and also leaves in him one-third
of the land in virtue of his right as surviving husband,
should be adopted; on the other hand, the opposite view
carries into effect the intention of the testatrix,...
