Wright v. Jones

• Decision Date: 19 January 1886
• Docket Number: 10,726
• Citation: 4 N.E. 281,105 Ind. 17
• Parties: Wright, Administrator, v. Jones et al
• Court: Indiana Supreme Court

4 N.E. 281

105 Ind. 17

Wright, Administrator, v. Jones et al

No. 10,726

Supreme Court of Indiana

January 19, 1886

From the Marion Superior Court.

The judgment is affirmed.

W Wallace, L. Wallace and O. T. Boaz, for appellant.

G Carter, J. N. Binford, A. C. Harris and W. H. Calkins, for appellees.

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 appelleeJesse 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 1840Jesse 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,...