Lantz v. Pence Juday, Extr. Etc.

Dissenting Opinion

Royse, J.

This is the second appeal in this case. In the case of Juday, Executor of Last Will and Testament of Pence, Deceased et al v. Lantz et al (1954), 124 Ind. App. 552, 117 N. E. 2d 382, (appellant’s petition to transfer to the Supreme Court was dismissed because it was filed too late). In that case the appellees here were the appellants and the appellants here were the appellees. The author of the majority opinion there is the author of the majority opinion in this case. In that case I wrote a dissenting opinion and for the reasons hereinafter stated feel that I must again dissent. In that case, at pages 556, 557, the majority correctly pointed out that:

“Although the appellees filed no pleading asserting fraud in the procurement of the judgment of January 31, 1922, the court permitted them to introduce evidence, over pertinent objections, having no probative value other than to impeach said judgment for fraud in its procurement and for which purpose it was obviously offered. This was error in two particulars. First, where fraud furnishes the ground for any type of relief it must be set up by special plea alleging facts constituting fraud before evidence tending to prove the ultimate fact will be admitted. . . . Second, it constituted a collateral attack on the judgment of January 31, 1922. Where the invalidity of a prior judgment is sought to be shown in a subsequent suit by matter extraneous to the record, such attack is collateral and cannot be made by a party to the former record. . . . There seems to be an exception to this rule where the second suit is for the express purpose of vacating or voiding the prior judgment for fraud in its procurement. Such a suit is regarded as a direct attack even though prosecuted by a party to the former record and such record shows *638no infirmities on its face. ... It is obvious that the present case does not fall within this exception.”

The majority opinion then stated:

“The appellees made two defenses below against the judgment of January 31, 1922, as a bar to this action. First, they say that, as the beneficiaries of an executory devise, they acquired absolutely no assertable interest in the land involved in said quiet title suit of 1922 until Samuel O. Pence died and then only in the event Fern Pence survived him as his widow and in the further event that their mother Pearl Darr was then dead. That these contingencies occurred long after the judgment upon which the appellants rely and necessarily such judgment is no bar to the assertion of rights subsequently acquired. Second, they say said judgment was procured by fraud and therefore void and of no binding effect on anyone. In the absence of special findings, we cannot say which of these contentions prompted the court’s decision and as evidence in support of the fraud issue was wholly improper and its admission erroneous we must assume that the error was harmful.” (My emphasis.)

In my opinion the majority opinion there stated the law of this case and, right or wrong, established the rule that must govern this case. Daugherty et al. v. Daugherty et al. (1949), 119 Ind. App. 180, 83 N. E. 2d 902 (Transfer denied). I interpret that opinion as holding if the erroneous evidence had not been admitted over proper objection the decision of the trial court would be affirmed. Therefore, in this case the facts being stipulated, as stated in the majority opinion, and being substantially the same as in the first case, it seems to me the judgment of the trial court should be reversed.

However, if the rule of the law of the case is not applicable here, I believe that on the record herein the judgment should be reversed.

*639In my dissent in the first case, at page 559, I said:

“It is a fundamental rule in the construction of wills that it is the duty of courts to effectuate the intent of the testator as such intention is gathered from the four corners of the will.
“It is my opinion the above quoted provision (Item 2, subd. b) in clear, positive, unambiguous language expresses the intent of the testator that if Fern Pence survived Sam while she was his wife, this property was to go first to Sam’s sister and if she had died, then to the appellees herein. In other words this was an executory devise.”

In support of this statement I cited Gavit, Blackstone’s Commentaries on the law (1941 Ed.), pp. 322, 323; 4, Thompson on Real Property, p. 813, Sec. 2266; Abernathy v. McCoy et al., etc. (1926), 91 Ind. App. 574, 598, 599 (transfer denied 1930), 154 N. E. 682; Jones and Another v. Miller and Another (1859), 13 Ind. 337; Section §56-138, Burns’ 1951 Replacement; Gavit, Future Interests, Wills and Descent, (1934) Edition, Sec. 58, p. 122.

The majority opinion now recognizes the foregoing principle of law set forth in my dissent and, as will be noted, cited several of the authorities relied on therein. Their opinion now for the first time, by what I deem tenuous reasoning, raises the bogey straw man of “ambiguity” to sustain their conclusion.

In my opinion the construction of this provision is controlled by the meaning of the word “survive.” In Webster’s New International Dictionary (Second Edition) it is defined:

SURVIVE — “To remain alive or existent; to live on; to continue to exist; to live beyond the life or existence of; to live longer than; to outlive; outlast the end of; as, to survive a person, a disaster, or one’s period of usefulness.
Syn. — Outlive.”

*640In Oxford Dictionary (Third Edition “The Concise”) —

SURVIVE — “Outlive, be still alive or in existence after the passing away of, come alive through or continue to exist in spite of, (s. one’s children, contemporaries, &c.; s. one’s usefulness; s. all perils) ; continue to live or exist, be still alive or existent. Hence SURVIVOR, SUR-VIVORSHIP (esp. right of joint tenant to whole estate on other’s death.)”

In Black’s Law Dictionary, (Third Edition) —

SURVIVE — “To continue to live or exist beyond the life, or existence of; to continue to live or exist beyond (a specified period or event) ; to live through in spite of; live on after passing through; to remain alive; exist in force or operation beyond any period specified.”

It is an elemental rule that in construing provisions of this kind, courts will give to ordinary words their usual and generally recognized meaning. In my opinion this provision of testator’s, will clearly, definitely and without ambiguity stated his intention that in the event Fern Pence was the wife of Samuel Pence when he died, this real estate would go to his heirs named therein. When he died she was his wife. Therefore, as stated at page 562 of my dissent in the original case:

“When the judgment of 1922 was rendered the likelihood that the contingencies would happen by which they could acquire title to this property was thinner than the hair that held the sword over Damocles. As heretofore indicated, Fern was not then the wife of Sam and Pearl Darr was alive. Hence, appellees at that time had no ascertainable title in this property. Under the authorities cited herein that judgment could not divest them of the title they subsequently acquired through the happenings of the contingencies which the testator had imposed.”

*641I adhere to that statement.

Finally, I wish to call attention to a late case from our Supreme Court on this question. In Rouse et al. v. Paidrick et al. (1943), 221 Ind. 517, 49 N. E. (2d) 528, Dan Paidrick and his wife conveyed to their son Lewis Paidrick certain real estate reserving to themselves a life estate in said property. It was further provided that Lewis Paidrick would hold said land after the death of grantor during his natural life and at his death the land would go to his children then living and to the descendants of those that may have died. In the event Lewis died and did not leave surviving him any child or descendants of a child, the land would go to his brothers and sisters; that if Lewis died before the grantor the land would revert to them. Some three years later Lewis conveyed this real estate by warranty deed back to his father. The father, several years later, conveyed to Rouse who occupied the land under claim of ownership from 1883 to 1932. Lewis subsequently married and had three children. Two of them and the descendants of the third brought this action to quiet their title. Judgment for the children. In affirming that judgment, the Supreme Court, speaking- through Judge Richman, said, at page 524:

“By his deed to his father Lewis conveyed only the life estate which he had and appellants’ predecessor by his purchase from Daniel acquired only the life estate of Lewis and that reserved by Daniel. Lewis lived a long time and during that time appellants evidently thought they owned the fee. These facts do not enlarge the estate held by them which ceased with his death.”

I believe the judgment should be reversed with directions to the trial court to quiet appellant’s title to this real estate.

Note. — Reported in 142 N. E. 2d 456.