Reeder v. Antrim

On Petition for Rehearing.

Felt, P. J.

*10012. *99Appellee’s learned counsel earnestly petition the court to grant a rehearing and support the petition with able and ingenious arguments. After a careful consideration thereof we have concluded that the petition should be overruled. The numerous propositions and arguments advanced all relate either directly or indirectly to the interpretation of item No. 6 of the will under consideration. We have held that the lan*100guage of the first part of that item — “At the death of my beloved husband, I give all my estate both real and personal, to the children of my nephew, Isaac Reeder, who shall survive my husband”— devises the fee-simple title to the real estate of the testatrix to appellants, but that their use and enjoyment thereof is deferred until the death of appellee, and that the meaning and effect of such devise is not changed by the subsequent portions of the item which deal with the right to alienate the real estate.

The gist of the arguments against this construction. is, that the language is not sufficient to. devise such title and that the above quoted portion of item No. 6 cannot be separated from the part that immediately follows it. The conclusion announced is supported by the decisions cited, and is also fortified by the following rules of construction.

15. While a devise of real estate in general terms unaccompanied by words of inheritance or other language defining the quantity of the estate devised gives only a life estate, yet where the will contains any expression or provision indicating an intention to devise a fee-simple title, the courts will give effect thereto in order to carry out the intention of the testator. Skinner v. Spann (1911), 175 Ind. 672, 701, 93 N. E. 1061, 95 N. E. 243; Fenstermaker v. Holman (1901), 158 Ind. 71, 62 N. E. 699; Gibson v. Brown (1916), 62 Ind. App. 460, 110 N. E. 716.

16. 17. *10118. *100A bequest of personal property in general terms is sufficient to give to the devisee an absolute title; and where a general devise of real estate is coupled with a general bequest of personal property, such fact is sufficient to indicate an intention to devise the lands in fee. This rule is applicable here for item No. 6 deals with “both real and personal” property. The first part of the item devises the *101fee and the subsequent language seeks to qualify it and to provide that such qualification shall cease to operate ten years after the death of appellee. We therefore have a valid devise of a fee with an attempted invalid qualification, and this under the law, after eliminating such invalid qualification, amounts to a fee-simple title, subject only to such deferred enjoyment of the estate granted as results from the valid provisions of the will. Gibson v. Brown, supra; Mulvane v. Rude (1896), 146 Ind. 476, 481, 45 N. E. 659; Heilman v. Heilman (1891), 129 Ind. 59, 63, 28 N. E. 310.

14. Our attention has also been called to §3047 Burns 1914 Acts 1907 p. 73, by an amicus curiae, with the suggestion that the statute changes the law as announced in .the opinion and supported by the decisions in Rocker v. Metzger (1908), 171 Ind. 364, 86 N. E. 403, and Morris v. Morris (1889), 119 Ind. 341, 21 N. E. 918. The will in question does not purport to devise to appellants any interest in the real estate to be enjoyed by them until after the death of appellee. Appellee takes nothing by virtue of the will of his wife, but as her sole surviving heir inherits that portion of her estate, which, under the provisions of the will as affected by appellee’s election to take under the law, is not disposed of by the will. We therefore conclude that the facts of this case are such as to make the foregoing decisions in point on the propositions to which they are cited. We do not regard the section of the statute referred to as in any way affecting this case for appellee takes nothing by virtue of the will of his wife. We are not therefore called upon to express an opinion as to the meaning and effect of the statute on cases to which it is applicable.

The petition for a rehearing is overruled.

*102Note. — Reported in 110 N. E. 568. Wills: construction, ascertaining intent, 50 Am. St. 281, 40 Cyc 1388; effect of an invalid clause upon clauses otherwise valid, 3 Ann. Cas. 950, 18 Ann. Cas. 473; estates created, construction, 40 Cyc 1573; cutting down clear devise or bequest by clauses or expression of doubtful import, 3 Ann. Cas. 615, 10 Ann. Cas. 176, 11 Ann. Cas. 470, 40 Cyc 1584, 1586. Perpetuities: validity of partial or limited restraint on alienation of fee-simple estate, 7 Ann. Cas. 319, 30 Cyc 1518-1521. See under (13) 40 Cyc 1650.