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62 Ind. App. 460

Gibson v. Brown

Indiana Court of Appeals

Decided December 17, 1915

Indiana Court of Appeals · decided 1915-12-17

<p>1. Wills. — Construction.—Estate Devised. — Words of Inheritance.— A devise of real estate in general terms, unaccompanied by words of inheritance or other language defining the quantity of the estate to be taken by the devisee, creates only a life estate under the rule of the common law which is in force in this state, but any additional language in the will indicating an intention to devise a fee simple will be given'effeet. pp. 466, 473.</p> <p>2. Wills. — Construction.—Bequest of Personalty. — Estate Granted. —A bequest .of personal property in general terms, under both tbe common law and the rule in this state, is sufficient td give an absolute title, pp. 466,473.</p> <p>3. Wills. — Construction.—General Devise of Realty. — Estate Granted. — A general devise of real estate, coupled with a general bequest of personal property, is sufficient to indicate an intention to devise tbe land in fee. pp. 466,474.</p> <p>4. Wills. — Construction.—Rules.—Intention of Testator. — In construing a will, rules of construction, as distinguished from absolute rules of law, must yield to tbe intention of tbe testator when expressed or otherwise ascertained in a proper manner, p. 466.</p> <p>5. Trusts. — Nominal Trusts. — Statute.—Under §4024 Burns 1914, §2981 R. S. 1881, a devise to a trustee, whose title is only nominal and who has no power of disposition or management of tbe lands devised is void as to tbe trustee and is to be deemed a direct conveyance to tbe beneficiary, p. 468.</p> <p>6. Wills. — Construction.—Partial Intestacy. — Tbe fact that a person makes a will is some evidence of. a purpose to dispose of bis entire estate, and, therefore, a construction that will result in partial intestacy is to be avoided, unless tbe language of tbe will compels such construction, p. 469.</p> <p>7. Estates. — Life Estate. — Tenant a Trustee. — A life tenant is a trustee for tbe remainderman in tbe sense that be must exercise reasonable precautions to preserve tbe property intact for transmission to tbe remainderman at tbe termination of tbe life estate, and be may not injure or dispose of it to bis detriment, p. 470.</p> <p>8. Wills. — Construction.—Disinheritance of Heir. — A will should not be so construed as to disinherit an heir unless such be tbe plain intention of tbe testator as gathered therefrom, p. 471.</p> <p>9. Wills. — Construction.—Estates Devised. — Where a will,# after directing that tbe testator’s personal debts, funeral expenses, etc., be paid from personalty, provided that tbe widow take a life estate in tbe residue, both real and personal, and that at her death an equal division be made between a daughter and a son, designating tbe portion of tbe land tbe son should take, and providing that it be held by him not in fee simple, but in trust for tbe heirs of bis body, held that, subject to tbe right of tbe testator’s widow therein, tbe son took a life estate with the remainder to tbe heirs of bis body, or an estate in fee tail, independent of §3994 Bums 1914, §2958 R. S. 1881, abolishing estates tail. p. 471.</p> <p>10. Wills. — Estates Tail. — Statutory Modification to Fee Simple.— Under §3994 Bums 1914, §2958 R. S. 1881, providing that estates tail are abolished, and any estate which, according to tbe common law, would be adjudged a fee tail shall hereafter be adjudged a fee simple, and if no valid remainder be limited thereon shall be a fee simple absolute, where a testator devised an estate in fee tail to a son, tbe estate granted by tbe will, by reason of tbe statute, became an estate in fee simple in such son; p. 472.</p>

Relies on Bonner v. Bonner

Good law ✅— No negative treatment on recordhow we know

Affirmed · Decided 1915-12-17

How this case has been cited

Cited by 24 later decisions — most recently July 1976

24 state decisions

901915192019301940195019601970decided

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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¶1On Petition for Rehearing.

Caldwell, C. J.

¶21. 2. *4744.*473An examination of the briefs filed in support of plaintiff’s petition for a rehearing convinces us that we did not succeed in making ourselves entirely clear in some phases of the original opinion. Certain language of the will considered apart from what follows, in effect devises and bequeaths to Alonzo C. McMillan the undivided one-half of the residue of the real and personal estate of the testator. As indicated in the original opinion, such language constitutes a general devise of such real estate, and it is therefore sufficient of itself to create in him an estate in lands only for the period of his natural life. Being coupled with a general bequest of personal property, however, the power of the language of the general devise is augmented to the extent that, severed from the language immediately following, it is sufficient to create a *474fee, the contrary not appearing. The rule that the fact that language bequeathing personal property in general terms is coupled with language devising real estate in general terms increases the power of the latter, is a mere rule of construction that readily yields to a clearly expressed contrary intention. Such clearly expressed contrary intention is indicated by the language immediately following, towit: “And that it shall be held by him not in fee simple.” Our analysis is to the effect that the testator devised real estate by the use of words, which under the common-law rule in force in this State, of themselves create but a life estate; but by recourse to such rule of construction, we should be compelled to say that a fee rather than a life estate was intended. However, the language immediately following,as abovequoted, being plain and unmistakable, it becomes both unnecessary and improper to apply such rule of construction. It follows that the language of the devise must be held within the limits of its common-law potency, and that, considered in connection with the language quoted, it is sufficient to create but a life estate. It is probably more apt to state that a life estate results from construction rather than implication as expressed in the original opinion.

¶3We' do not overlook the fact that the language of the will is “not in fee simple, but in trust” etc., and that such language apparently creates an antithetic relation between an estate in fee simple and an estate in trust. Such conclusion, however, results only from a superficial examination of such language, disassociated from what precedes it. An estate in trust is not and can not be made the antithesis of an estate in fee simple. The one expression has reference to the quality of the estate; *475the other to its quantity. The expression “fee simple” defines the quantity of the estate, regardless of whether it is owned individually, or held for the use and benefit of another, while an estate in trust may in quantity be a fee simple, for life or for a term of years. The provision for the division of the residue between Alonzo C. McMillan and his sister imports an estate for the individual benefit of each. There follows a clause specifying the tract devised to the former. Individual benefit is still indicated. Under the circumstances, we are firmly of the opinion that if the testator intended to create an estate in trust, rather than an estate for the benefit of Alonzo, the language “and that it shall be held by him not in fee simple” is very inapt. We adhere to our original conclusion as to the nature of the estate created.

¶4However, a deduction conditionally made by the original opinion to the effect that any other interpretation of the will than as therein and herein indicated would result in partial intestacy, is possibly not Justified. On the assumption that the testator intended to create an estate in trust rather than an estate for the individual benefit of Alonzo C. McMillan, the phrase “not in fee simple” should probably he held not to reduce the estate imported by the preceding language, but rather as used antithetically to the phrase, “but in trust.” On such assumption, the estate in trust, if created, would be in quantity a fee. Such assumption, however, as we have indicated, is not allowable. In effect, we applied the rule in Shelley’s Case in the original opinion in arriying at the conclusion that the will created in Alonzo C. McMillan an estate tail, and that such estate, by virtue of the statute, became a fee simple. It follows that the argument that we ran counter in part to the actual *476intent of the testator is not effective. Every devise coming within the rule in Shelley’s Case is controlled by it, even though the actual intent of the testator is thereby thwarted. Bonner v. Bonner (1901), 28 Ind. App. 147, 62 N. E. 497; Hamilton v. Sidwell, supra, note p. 1039.

¶5Petition for rehearing overruled.

¶6Note. — Reported in 110 N. E. 716, 112 N. E. 894. See under (1), (3) 40 Cyc 1575, 1577; (2) 40 Cye 1607; (9), (10) 40 Cyo 1595-1602.

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