In 1917, Adam Weppler executed his will, which contained the following provisions:
"Item 1. My beloved wife, Anna Weppler, shall receive five hundred dollars a year out of my real and personal property till her death.
"Item 2. My real estate in Gilman, Illinois, shall be sold as soon as convenient after my death.
. . .
"Item 4. At my wife's death all my property shall be divided equally among our eight children, should any of them die without issue before my wife's death, then in that case the deceased one's share shall be given to the surviving children of mine before mentioned above.
"Item 5. My farm of two hundred forty acres in Benton County, Indiana, must not be sold till my beloved wife dies."
The testator died December 24, 1925, the owner of the real estate described in the will, and survived by his wife and their eight children. The widow elected to take under the will. In February, 1935, Ernest Weppler, one of the testator's sons, conveyed by quitclaim to his wife, Mabel, his undivided one-eighth interest in the 240-acre farm in Benton County, referred to in item 5 of the will. Ernest Weppler died in March, 1936, without issue, survived by his wife, his mother, and seven brothers and sisters. Following her husband's death, Mabel Weppler quitclaimed said one-eighth interest in said 240-acre farm to the personal representative of her husband's estate, for the express purpose of making it available for the payment of his debts.
This action was brought under the Declaratory Judgments Act (§ 3-1104, Burns' 1933, § 441, Baldwin's *Page 35 1934) by the administrator with the will annexed of the estate of Ernest Weppler, deceased, for a construction of the will of Adam Weppler. The trial court made a special finding of facts, and adjudged that on the death of the testator the absolute fee to the real estate described in item 5 vested immediately in the eight children, of whom Ernest Weppler was one, and that an undivided one-eighth interest in said land passed to Mabel Weppler by virtue of her husband's deed to her and thereafter to the personal representative of Ernest Weppler's estate by her deed to him.
One of the errors assigned is that the decision is contrary to law. The appellants also assert that the administrator with the will annexed of the estate of Ernest Weppler had no legal capacity to bring and maintain the action, and that the trial court erred in striking from the record the appellants' first partial demurrer to the complaint and in sustaining appellees' demurrer to the appellants' second paragraph of answer.
The will is devoid of the usual words of gift, but the clause, "at my wife's death all my property shall be divided equally among our eight children," is sufficient to effectuate a 1, 2. testamentary disposition of the real estate referred to in item 5. Standing alone and unqualified by any other condition, this clause would vest a fee simple title in the eight children, though it is made subject, of course, to the wife's annuity, established by item 1, and the postponement of partition, provided for in item 5. § 7-705 and § 3-2406, Burns' 1933, § 3362 and § 1111, Baldwin's 1934. The fee vested in the eight children is a conditional one, however, by virtue of the subsequent clause reading, "should any of them die without issue before my wife's death, then in that case the deceased one's *Page 36 share shall be given to the surviving children of mine before mentioned above." That is to say, the will created a determinable conditional fee in favor of each of the testator's eight children, the condition being that such fee might be divested by the death of a child without issue before the death of the testator's wife. The use of the clause, "before my wife's death," excludes the presumption that the death referred to was one occurring in the lifetime of the testator. Quilliam v. UnionTrust Co. (1924), 194 Ind. 521, 142 N.E. 214.
A determinable conditional fee may be conveyed, but the grantee takes title subject to the conditions with which it is impressed. So, the testator's son, Ernest Weppler, had the right to 3, 4. convey to his wife, Mabel, his interest in the 240-acre farm in Benton County, but his death without issue before his mother's demise divested the last grantee so that said farm would become the absolute property of the seven surviving children on the death of the testator's widow, should the situation remain otherwise unchanged. Hillis v. Dils (1913),53 Ind. App. 576, 100 N.E. 1047, 102 N.E. 140; Hall v.Bauchert (1918), 67 Ind. App. 201, 117 N.E. 972.
Appellants say that "there is no statutory authorization for an administrator to accept a deed to real estate in which his decedent has an interest for the purpose of sale to make 5, 6. assets to pay debts." Even if that be true (which we need not decide), this is not a proceeding to sell real estate to pay debts. Actions of this character are specifically authorized by the Declaratory Judgments Act. It appears from the briefs that the parties are in agreement as to the ownership of the rents and profits derived from the real estate in controversy since the testator's death. Whether the appellees' share thereof is subject to a claim on *Page 37 behalf of the Adam Weppler estate is not germane to this action, and since the facts relating to the principal issue are not in dispute, a new trial is unnecessary.
Reversed, with directions to restate the conclusions of law to the effect that appellee administrator has no interest in the real estate described in the complaint, and to enter judgment accordingly.
NOTE. — Reported in 29 N.E.2d 204.