DISSENTING OPINION. I am compelled to dissent from the majority view here for the following reasons:
The appellants' contention here is that since the widow renounced the will, and made her election to take under the law, that she would take only the $500.00 as allowed by section 3112, Burns 1926 Indiana Statutes, one-fourth of the real estate, free of all debts since it was in excess of $10,000.00 and under $20,000.00, as provided by section 3337, Burns, supra, and one-third of the personal property, less the proportionate share of the debts, as provided by section 3343, Burns, supra, and that the remaining two-thirds of the estate passed into the residuum and to the named residuary legatees and that their possession should be immediate.
The appellees contend that since the life estate given in the will to the widow was not specifically given to any other legatee that it was undisposed of by the will and hence should go to the widow. They rely on two cases and two cases only to sustain their contention, which are Reeder v. Antrim (1915),64 Ind. App. 83, 110 N.E. 568 and Rocker v. Metzger (1908), 171 Ind. 364, 86 N.E. 403.
From the earliest Indiana cases it has been the law in Indiana that in the absence of a residuary clause then as to that portion of decedent's estate, which the widow does not receive under the law, by virtue of her election, the decedent died intestate.
The majority opinion herein says that the residuary clause is not "an ordinary general residuary clause" and it is upon such clause that I believe the entire opinion should rest. I believe that the appellees here and my conferees have failed to distinguish between the cases where there is a residuary clause in the will and those in which there is not one. All the cases cited in the majority opinion, with the exception of Garrison v. *Page 250 Day (1905), 36 Ind. App. 543, 76 N.E. 188, are cases in which there were residuary clauses. As I see it there are two lines of cases in Indiana on the point — one line is the line cited in the majority opinion, being the cases of Dale v. Bartley (1877),58 Ind. 101; Wilson v. Moore (1882), 86 Ind. 244; Rusing v.Rusing (1865), 25 Ind. 63; and Cool v. Cool (1876),54 Ind. 225, and the other line starts with Piercy v. Piercy (1862),19 Ind. 467, and includes Holbrook v. Clearly (1881),79 Ind. 167; West v. West (1883), 89 Ind. 529, and Garrison v.Day, supra.
This latter line of authority from the Piercy case to the Garrison case seems to me to be ample authority for reversing this case and I can see no reason why the two lines are confused unless it be for the opinion in the Rocker case. Since there is no specific mention of the residuary clause in the Rocker case, and since the only authorities cited in that case is the line of cases starting with the Rusing case and continuing down to the Wilson case, all of which are cases in which there were residuary clauses, it is an irresistable presumption that the Rocker case contained no residuary clause. Any other presumption would only, in effect, say that the Supreme Court at that time intended to overrule that line of cases, starting with Piercy v. Piercy,supra, without specifically mentioning any of them, or that the court, at that time, was not familiar with that rule of the law. Of course either of these presumptions would be doing an injustice to the Supreme Court and I do not think either should be indulged in.
The appellee contends that the fifth item of the will is not an ordinary general residuary clause, but the sixth item is an ordinary general residuary clause and it reads as follows: "I will and bequeath that after each and all of the above and foregoing bequests have been paid in full that the rest and residue of my estate *Page 251 to my brother . . ." The will must be construed as a whole and one particular item cannot be singled out to say that the will does not provide for the residuum. It is well settled that no specific words are necessary to dispose of the residuum of any estate, as was decided in Barker v. Petersburg (1907),41 Ind. App. 447, 82 N.E. 996.
Even the majority opinion herein does not go so far as to say that this is not a residuary clause but the inference, in effect, says that there is a residuary clause. The logical and irresistable inference from these words "the fifth item . . . is not an ordinary general residuary clause" is that it is a residuary clause of some kind and if it is a residuary clause, of course, the opposite result should be reached here. Of course, it might be that these two lines of authority do not conflict, but as I see it they do, and I think that one line ought to be followed and the other specifically overruled. I think the more logical reasoning would be to overrule the line established by the Rusing case. This is very forcibly and logically contended for by the appellant here and knowing their counsel to be learned in the law I do not believe they would make the contention, in the manner here made, if there were not some basis for it, nor would I be writing a dissenting opinion.
In view of the confusion I think exists in the law, I do not think this cause should be passed by without an effort to effectively distinguish or one line established definitely as the law in this State. Otherwise the same contention will arise again and we will be forced to meet it squarely at that time and since it is before us now I see no reason for postponing it. *Page 252