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38 Ind. App. 281

Matlock v. Lock

Indiana Court of Appeals

Decided January 26, 1905

Indiana Court of Appeals · decided 1905-01-26

<p>1. Wills. — Construction.—Intention.—Courts are guided in the construction of a will by the intention of the testator, and where not in contravention of law, such intention will be given effect, p. 292.</p> <p>2. Same. — Estates Devised. — Determinable Fee. — A will devising in fee, to a grandchild, certain real estate provided such grandchild pays all taxes, keeps up necessary repairs and does not encumber by mortgage or sell said real estate before she arrives at the age of forty, and if she die or “attempt to convey, mortgage or encumber all or any part of said real estate,” then over to other devisees, creates in such grandchild a determinable fee. Per Roby, J., and Comstock, C. J. It creates a conditional fee. Per Wiley, J. p. 293.</p> <p>3. Same. — Real Estate. — Alienation.—Suspending Power of.— Statutes. — A will devising lands to a grandchild and if such grandchild shall, before she arrives at the age of forty, “attempt to convey, mortgage or encumber all or any part of said real estate,” then over to other devisees, does not violate §3382 Burns 1901, §2962 R. S. 1881, providing that the power to alienate shall not be suspended longer than the existence of a life in being, etc., since such devisee is a' life in being at the time such will takes effect, p. 304.</p> <p>4. Same. — Bequests.—Trusts.—A bequest to testator’s grandchild to be held in trust until such grandchild arrives at the age of forty, at which time such bequest shall be delivered absolutely, is valid and it is the duty of the trustee to administer such trust until such time arrives, p. 306.</p>

Relies on Pulse v. Osborn

Good law ✅— No negative treatment on recordhow we know

Reversed · Decided 1905-01-26

How this case has been cited

Cited by 12 later decisions — most recently September 1999

12 state decisions

401905191019201930194019501960197019801990decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Comstock, C. J.

¶1I concur in the conclusion reached, but am of the opinion that the estate devised to Mellie E. Loch is a determinable fee.

*308Roby, J.

¶2“A conditional fee is one which restrains the fee to some particular heir to the exclusion of others.” 2 Blackstone’s Comm. (Cooley’s ed.), *110; 4 Kent’s Comm. (14th ed.), *11.

¶3The estate devised to Mellie Lock was a fee. It may he of perpetual duration. 1 Washburn, Real Prop. (6th ed.), §162. It is liable to he determined by an event expressed in the instrument creating it, and is therefore a determinable fee. 1 Washburn, Real Prop. (6th ed.), §§164-112; 2 Blackstone’s Comm. (Cooley’s ed.), *109; 4 Kent’s Comm. (14th ed.), *9; Pulse v. Osborn (1903), 30 Ind. App. 631.

¶4The estate of Mellie Lock is subject to a conditional limitation, dependent upon her death before she arrives at the age of forty years. 1 Washburn, Real Prop. (6th ed.), §165.

¶5I do not understand that the statute against perpetuities (§3382 Burns 1901, §2962 R. S. 1881) is applicable to the provisions of this will. I therefore concur in the reversal of the judgment, placing my concurrence exclusively upon the propositions above stated.

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