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Reynolds v. State, 147 Ind. 3, 9, 10, 46 N, E., 5. Wills om 634(18)-Devise held to vest de31; Chesterfield v. State (Ind. Sup.) 141 N. terminable remainder in heirs, as purchas. E. 632. Besides, the penalty for assault and ers, contingent on one of two happenings. battery with intent to commit rape by force Devise to daughter for life, and after her is the same as the penalty for rape; so that death to her children in fee and, if she die no substantial rights of the appellant could leaving no child or descendant surviving her, be affected by the failure to give a separate

to be "equally divided among my heirs,held charge as to that offense. Section 2250, scription of "my heirs” at testator's death,

to vest in those, as purchasers, answering deBurns' Supp. 1921; section 1, c. 148, pp. 373, a determinable remainder, contingent on death 374, Acts 1921.

of daughter before testator's with no issue [3] Appellants also complain of an instruc- who survived him, or death of daughter after tion to the effect that four forms of verdict testator's without child or children born alive were submitted to the jury for their action, after his death. and that whichever they might adopt should be signed by their foreman and returned in- 6. Wills w634(17)—Devise to daughter for

life, and after her death to her children, held to open court, insisting that any one of six

to vest remainder in child living at testator's verdicts was possible under the issues. But, death. again, appellants did not request that addi

Devise to daughter for life and after her tional forms of verdict be submitted, and death to her children in fee, and if she dies appellants have not pointed out nor suggest- leaving no child, or descendant thereof, sured that any evidence was introduced at the viving her, over, held to vest remainder in fee trial that tended to prove a state of facts in child of daughter living at testator's death, which could not be fully found by a verdict subject to having his share diminished by birth in the form of one of those prepared by the of other children. court. No available error was committed in 7. Descent and distribution @ 17—Vested regiving the instructions excepted to.

mainder in fee in child of life tenant, held to The judgment is affirmed.

descend to tenant on death of child.

Where testator's daughter was given life estate, and after her death fee to children sur

viving her, remainder having vested in child BURRELL V. JEAN et al. (No. 24893.) alive at testator's death, interest in remainder

being alienable and descendable, held to de(Supreme Court of Indiana. Feb. 27, 1925.) scend to life tenant on death of her child, sub1. Wills 629—Postponing estates disfa. ject to interest of children born to her therevored.

after. Postponing estates is disfavored unless 8. Evidence 58—Contingency, of birth of clear intent so to do appears, presumption be child to woman, determined only on her ing that postponing words relate to beginning death. of enjoyment, not time of vesting.

Contingency of birth of child or children 2. Wills Cm 629–Remainders will be regarded alive to adult woman is determined only on her

as vested, rather than contingent or condi- death. tional, so as to avoid possibility of partial intestacy.

9. Descent and distribution 17-On death

of children, named as remaindermen, of life Remainders will be regarded as vested,

tenant, latter to inherit parent's share. rather than contingent or conditional, in absence of clear intention to contrary, so as to

On death intestate of children of life tenavoid construction which might result in par- ant named remaindermen as a class, if unmartial intestacy.

ried and without issue, tenant would inherit

parent's share. 3. Wills 449—Testator. held to have dis

posed of all his property, such being his in- 10. Wills - 635—Uniting of estates in posses. tention.

sion and remainder, held to vest fee, subUnder Burns' Ann. St. 1914, § 3123, it ap

ject to contingency. pearing from will that testator intended to dis Remainder, devised to children of life tenpose of all his interest in real property, will ant, having vested in an only child, and at his was construed so to do.

death descended to life tenant as only parent,

union held to vest fee in such tenant, subject 4. Wills Em 634 (19)-Word "after" in devise to interest of children born thereafter. to one for life, and after her death, to oth

held to pertain to time of enjoyment, 11. Judgment Om949(6)-Plea of res judicata not time of vesting.

held sufficient. Where devise was to daughter for life and In action to quiet title, pleas of res judi"after the death of my said daughter" to her cata, embodying judgment of former action children in fee, word "after" held to pertain brought by plaintiff against defendants and to beginning of enjoyment of estate by re-others, and averring facts showing issues in mainderman, not time of vesting of interest.

each case were same, held not demurrable on [Ed. Note.-For other definitions, see Words grounds that pleadings in former action were and Phrases, First and Second Series, After.] not incorporated in pleas.

wFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

ers,

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(146 N.E.) 12. Judgment Or 713(2)—Judgment bar on Is-120. Judgment Ow714(1)-Consent judgment sues adjudicated.

affects only existing titles. Judgment on the merits in court of com- Consent judgment, though valid as estoppetent jurisdiction bars subsequent action be- pel on all matter covered by stipulation, held tween same parties in interest, if it affirma- to affect only existing titles, and not those tively appears that same issues have been or subsequently acquired. might have been completely adjudicated. 13. Judgment 668(1)Judgment conclusive Appeal from Circuit Court, Jackson Counonly against parties in character involved. ty; Jno, H. Edwards, Judge.

Judgments are presumptively only conclusive against parties in character in which they

Suit by Beldora Burrell against Maude B. sue or are sued, though every reasonable pre-Jean and others to quiet title. Judgment sumption will be indulged to sustain judgment for defendants was affirmed in Appellate naturally assumed to be determination of is- Court on plaintiff's appeal, and cause transsues as raised by pleadings and supported by ferred from the Appellate Court under secevidence.

tion 1394, cl. 2, Burns' Ann. St. 1914; Acts 14. Judgment @ww584-Essentials of "ros Judi- 1901, p. 565. cata" named.

Reversed and remanded, with directions. To invoke principles of Sʻres judicata," four Superseding former opinion in 132 N. E. things must concur, a suit, final judgment, 704. identity of subject-matter, and identity of parties.

Smith, Remster, Hornbrook & Smith, of In[Ed. Note. For other definitions, see Words dianapolis, John M. Lewis and Thomas M. and Phrases, First and Second Series, Res Honan, both of Seymour, and Watson & EsaJudicata.)

rey, of Indianapolis, for appellant. 15. Judgment na 585(2)—Test of res judicata

Montgomery & Montgomery, of Seymour, stated,

and J. Ross Robertson, of Brownstown, for Whether identical evidence supports the appellees. issues tendered in both actions is test for determining if former judgment is bar to present tion against appellees to quiet her title as

MYERS, C. J. Appellant brought this acaction.

a fee-simple owner of certain real estate. 16. Judgment 736~Former judgment, to construe will as to personalty, not adjudica- tained the ordinary allegations, and the sec

The first paragraph of her complaint contion of claim to realty by descent. In action by life tenant under devise to she relied to show fee-simple ownership. Is

ond stated the facts in detail upon which quiet title claimed through descent, judgment, in former action between same parties, to

sues were formed by answers and replies, construe will as to personalty, which also de- which were submitted to the court for trial, fined interests in realty as created under will, resulting in a judgment in favor of appelheld not adjudication in present action; nei- lees. The overruling of appellant's demurther evidence, issues, nor subject matter be- rer to each paragraph of affirmative answer ing the same.

filed by certain appellees, and the overruling 17. Judgment Cw91-Consent judgment need of her motion for a new trial, are separately not be confined to issues.

assigned as errors. Validity of consent judgment does not de- The ruling questions presented by this append on confining it to issues presented by peal may be indicated by a brief statement case in which it is rendered.

of the facts which appear both from the 18. Infants en 107-Consent judgment on mat. pleadings and the evidence at the trial. ters, not within issues of cause, not binding Early in the year 1887, Henry G. Smith on minor.

departed this life testate, leaving, as his only Consent judgment, as to effect, in will, of devisees, beneficiaries, and heirs at law, the clause devising realty to one for life, remain- appellant, a daughter, and appellee Miller, a der to her children, where interest in remain- daughter, and other children who have since der vested at testator's death in minor son of died leaving the other appellees herein who life tenant, rendered in action to interpret are grandchildren, and one great-grandchild. clauses of will bequeathing personalty, held not to bind remainderman; neither he nor his The last will of Henry G. Smith was probatguardian being able to prejudice his rights ed in the Jackson circuit court on February thereby.

5, 1887. That part of the will material to

this controversy reads as follows:
19. Judgment em714(1)-Consent judgment
held not to fix future responsibility.

"Item 5. I will and devise to my daughter Consent judgment, in action for construc- Beldora Pankey, for and during her natural tion of will arising on controversy over per- life, the following real estate in Jackson counsonal estate, which also embodied declaration ty, Indiana, namely: (Real estate described.) of the agreed disposition of realty in prac- And after the death of my said daughter, I tically same words as will, held not to trans- give and devise said lands to her children, and fer or waive any expectancy of life tenant, if she dies leaving no child or descendant of under devise, to inherit from remainderman any child surviving her, said real estate shall thereunder.

be equally divided among my heirs."

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Thereupon tion.

By other items of this will other real es- tion, were called and defaulted. Three were tate was devised by the testator to each of minors, and for these a guardian ad litem his other children in practically the same was appointed; but no answer by such language used in item 5. He also bequeath- guardian is shown to have been filed. ed certain personal property among his chil. Thereafter, on January 17, 1888, in the Jackdren. Some of the original items of the will son circuit court, the following judgment were more or less modified by codicils. Item was entered: 4 of codicil 3 reads as follows:

"Come again the parties by their attorneys, “I give and bequeath to my daughter Bel- and by consent and agreement of the parties dora Pankey, all of my personal property ex- and upon the defaults heretofore made, the cept the roan mare and except my money, ac

court enters the decree following construing counts, notes and certificates of stock."

the last will and testament of Henry G. Smith,

deceased. It is ordered and decreed by the During the administration of the testator's court that under and by virtue of said last will estate, a question arose concerning the divi- and testament after the payment of funeral sion of the personal property.

expenses, debts and expenses of administra

And that by virtue of item 5 the appellant in this case, on April 25, 1887, of said will, Beldora Pankey is to have and brought a proceeding against the executor in to hold for and during her natural life the the Jackson circuit court asking for a con- real estate described in said item, to wit (destruction of the will pertaining to the per- scribing the real estate), and after the death sonal property. On August 28, 1887, this ap of said Beldora Pankey said real estate shall pellant, complying with an order of the descend in fee simple to her children or the deJackson circuit court, filed an amended com- | scendant of any deceased child in equal shares, plaint making all of the legatees and devi- and if she dies leaving no child or descendant of sees of Henry G. Smith parties. In that any child surviving her, said real estate shall be complaint, founded on item 4 of codicil 3, equally divided among the heirs of said testa

tor." she alleged that she was “entitled to have her title thereto declared, quieted and set At the time of the death of Henry G. tled by a judgment of the court, subject al-Smith, Simeon Pankey, a son of this appel. ways to the demands thereon for the pay-lant, was alive, and for aught appearing, ment of all just debts of the testator." was the only child born to this appellant ei. Then follows other allegations as to the ther before or since that time. In the year amount of the personal property of the tes- 1889 Simeon Pankey died intestate, unmartator, and the claim of the executor and ried, and without issue, leaving his mother, other heirs and devisees that the will in that appellant here, as his sole and only heir at respect was uncertain and indefinite, al- law. Hence appellant is claiming a feethough in that regard it was definite and simple title to the real estate described in certain, and that

item 5 of the will by virtue of the laws of “Under and by virtue of the same she be- descent. Appellees answered by a general came the owner of the personal property in denial and former adjudication, wherein it addition to other bequests and devises made was averred that in a former suit to conto her in said will, and she therefore asks the strue the will a decree was entered to the court for a construction of said last will and effect that the fee-simple title to the land in testament of the decedent and that all her question descended to appellant's son only at rights thereunder be settled and put at rest." the death of his mother. And further an.

swering that appellant's son never acquired Certain of the defendants to that action

an indefeasible fee-simple title to the real answered, wherein they averred :

estate, and therefore appellant could not and "That under said ninth item, the plaintiff did not acquire through him such title, (appellant here) will be entitled to receive Three questions are submitted by this apone-fifth part in value, less the excess of her peal: (1) In whom did the fee to the real said real and personal property over the prop- estate described in item 5 vest upon the death erty received by each of the other heirs afore of Henry G. Smith? (2) Was the issue in said, and defendants ask the court to construe said will so that the plaintiff receive an equal the instant case presented and decided in the share with each of the other children, viz. former action wherein Simeon Pankey was (naming them) from the estate of the said a defendant? (3) Did the so-called “consent decedent and no more.”

judgment" estop this appellant from there

after inheriting from her son the real estate The ninth item of the will was in the na- described in item 5? ture of a residuary clause whereby the tes An answer to the first question would tator disposed of his undemised or unbe- seem to require that we give some attention queathed property to his children equally, to the will of the decedent, Henry G. Smith, and to equalize in value bequests and ad- and especially to item 5 thereof. That item vancements theretofore made to them by the had to do with real estate only, and theretestator.

under it is claimed by appellant that Simeon On November 16, 1887, two of the defend- | Pankey, upon the death of the testator, took ants, one of whom was notified by publica- | the fee in remainder unconditionally. On

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(146 N.E.) the other hand, appellees assert that Simeon | E. 292; Clark v. Allen, 189 Ind. 601, 123 N. Pankey at most had only a contingent or E. 113. conditional fee which was divested by his [3] Referring to the will, we find this death in the lifetime of the life tenant. statement: “After the payment of my debts

All parties concede that by item 5 of the and funeral expenses I dispose of my propwill at bar testator gave to Beldora Pankey, erty as follows." Following this statement, now Beldora Burrell, this appellant, an es- the first six items dispose of certain tracts tate for life. The various contentions here of real estate specifically described, and item submitted by counsel for each of the parties 5, as we have seen, and not unlike some othrelate to that part of the same item where er items devising real estate, concludes with in the testator disposed of the fee. The sev- the statement: eral conclusions drawn, based upon different “And after the death of my said daughter, meanings, attributed to the wording of this I give and devise said lands to her children, will, are exceedingly persuasive that a cor- and if she dies leaving no child or descendant rect result in this matter may be reached of any child surviving her, said real estate shall only by a resort to established rules for the be equally divided among my heirs."

Item 9. "The other property I may die posconstruction of an ambiguous will.

sessed of shall be so divided among my chil[1, 2] For this purpose, there are many dren as to make them equal in value, taking fixed rules which the court may call to its in consideration the advancements heretofore aid when the intention of the testator is not made to them, and taking in consideration the clearly expressed, or when, to give effect to value as fixed by me to the real estate devised such intention, a well-established rule of law to each one, as set forth in my account book. will be contravened. In the case at bar it is * If any one or more of the aboveonly necessary that we keep in mind that named parties shall be dissatisfied they shall

And the "the law looks with disfavor on postponing take no part under this will. estates, and the intent so to do, must be portion devised or bequeathed herein to such as

are or shall be dissatisfied as aforesaid shall clear and not arise from inference or con be equally divided among my other children.” struction; it presumes that words postponing the estate relate to the beginning of the The foregoing excerpts taken from the will enjoyment of the remainder, and not to the evince an intention on the part of the testavesting of such an estate.” In the absence tor to thus dispose of all of his property. If of a clear intention to the contrary, it vests this be true, then, by statute: "remainders absolutely, rather than contin- “Every devise, in terms denoting the testagently or conditionally; partial intestacy tor's intention to devise his entire interest in will be avoided if possible." Alsman v. Wal- all his real or personal property, shall be conters, 184 Ind. 565, 570, 106 N. E. 879, 111 N. strued to pass all of the estate in such propE. 921; Aldred v. Sylvester, 184 Ind, 542, erty, including estates for the life of another, 111 N. E. 914; Busick v. Busick, 65 Ind. which he was entitled to devise at his death.”' App. 655, 115 N. E. 1025, 116 N, E. 861.

Section 3123, Burns' 1914; section 2567, R.

S. 1881. Appellant insists that the will in question gave Simeon Pankey a fee absolute; while Obviously, from the language of the will, appellees, by way of argument, meeting ap- Henry G. Smith intended to make provision pellant's insistence, say that “similar devis- for his daughter, this appellant, and for her es were made to each of his children, and children. She and her child, Simeon Panunder the suggested construction, if any of key, survived the testator. Simeon Pankey, them died after the testator without surviv. in 1889, then about 18 years of age, died, ing issue, he would have died intestate as to survived by his mother, who is still living. real estate given for life to such child, since At this point we are concerned chiefly in deno disposition of the fee in that case would termining the interest of Simeon Pankey in have been made"; that “the testator had no the real estate described in item 5 upon the heirs in his lifetime, and hence the provi- death of his grandfather in 1887. sion that 'said real estate shall be equally If Simeon Pankey took the fee contingent divided among my heirs' has reference to a on surviving his mother, the contention of death after his own decease."

appellees would seem to have merit. But The suggestion of partial intestacy, and such intention of the testator must be apthat the testator had no heirs in his life- parent from his language, and not the retime, is submitted as evidence of intention sult of construction. For, as we have seen, on the part of the testator to devise a condi- and as pointed out in the case of Alsman v. tional fee only to appellant's children, sub- Walters, supra, the law favors the vesting ject to be divested in case they or their de- of remainders at the very earliest possible scendants did not survive her, whether she moment. It will serve no good purpose for died before or after the testator. Counsel us to again analyze the various cases, or to for appellees evidently had in mind a rule restate the rules for the construction of wills forbidding, if possible, a construction of a and step by step apply them to the circumwill which would result in partial intestacy. stances upon which the present question is Myers v. Carney, 171 Ind. 379, 86 N. E. 400; predicated. That was done in the opinion in Keplinger

v. Keplinger, 185 Ind. 81, 113 N. I the Alsman Case. The rules of law there

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applied are quite in point at this stage of , vised to his heirs contingent upon the birth this opinion.

of a child or children thereafter born to the [4] It may be well to state that the word life tenant. While the interest thus devised "after," as used in the phrase, “and after the to his heirs might be perpetual, yet it was death of my said daughter,” under the rules subject to be determined by an event exto which we have referred, undoubtedly has pressed in the instrument creating it, and reference to the time of survivorship and consequently such heirs would be vested with to the death of the testator in preference to a determinable fee only. In other words, in the death of the first taker. It, as well as the present case at least one of two conthe words immediately following, standing tingencies must happen before a fee-simple alone as they are here, are words of post- | interest would ripen in testator's heirs: ponement and pertain to the beginning of the First, death of the life tenant prior to that enjoyment of the estate by the remainder- of the testator without a child or children man, and not to the time of vesting the in- living at the time of the latter's death; and, terest. Archer v. Jacobs, 125 Iowa, 467, 101 second, death of the life tenant after that N. W. 195; Kinkead v. Ryan, 64 N. J. Eq. of the testator without a child or children 454, 53 A. 1053; Beatty's Adm'r V. Mont- born alive to her after his death. gomery's Ex'x, 21 N. J. Eq. 324. But it is In McIlhinny v. McIlhinny, 137 Ind. 411, said that this line of reasoning will lead to 418,:37 N. E. 147, 149 (24 L. R. A. 489, 45 partial intestacy, and such was not the in- Am. St. Rep. 186), it was said: tention of the testator.

"Accordingly, it has been held by this court, [5,6] We are not unmindful of the rule and so ruled at common law, that a valid rethat the intention of the testator to dispose mainder might be limited on a particular estate of all of his estate must be upheld, if pos- for life, to unborn children, and, on their birth sible. Under our construction of the present during the life tenancy, the remainder would will, such would be the result, and partial immediately vest. The remainder is contingent intestacy avoided. The infirmity of appel- before, and vested after, the birth of the re

mainderman." lees' propositions and argument rests upon what we regard as an erroneous assumption

Furthermore, in Als man v. Walters, supra, that the language, "if she dies leaving no

it was held that, child or descendant of any child surviving her," means the death of the life tenant at

"Where a life estate is carved out, with a any time without surviving children; that is gift over to children of the life tenant, the to say, that such death without surviving gift not only embraces the children living at

testator's death, but also all who may come children, whether before or after the death into existence during the life tenancy." of the testator, can make no difference. Furthermore, counsel for appellees seem to be

See, also, Coquillard v. Coquillard, 62 Ind. under the impression that the phrase "said App. 489, 113 N. E. 481. real estate shall be equally divided among In the instant case, the life tenant, at the my heirs” is evidence of an intention that time of the death of the testator, had a livthe interest in remainder in the real estate ing child who, under the rules for the conshould not vest absolutely until the death struction of wills above pointed out, we bold, of the life tenant. Neither of the foregoing was given the fee in remainder, conditioned propositions can be sustained. It is true, at only to the extent of having his share dithe time the will was executed, the testator, minished by other children thereafter born in law, had no heirs, nor was the will at alive to appellant. that time effective for any purpose. Not un [7-9] It will not do to say that, by the aptil his death did the will speak. Hence the plication of settled rules, results will follow words, "his heirs," coupled with his name, which had not occurred to the testator. We would not be subject to the same interpreta- are only concerned in brushing aside such tion as would the same words following a rules in case of expression of a clear innamed devisee. The will, at his death, spoke tention of the testator justifying such action. as an instrument transferring property or If he had intended that this appellant should an interest therein by purchase to the per- have only a life estate in any event, or that sons thereunder entitled to receive the same. her children should take the fee in remainder The words "his heirs” were evidently used contingent upon their surviving the life tenadvisedly to designate the person or persons ant, he could easily have said so. We therewho are called to succeed him as owner or fore conclude that Simeon Pankey, upon the owners of the real estate in question by op death of Henry G. Smith, was vested with eration of law. Without doubt, it was the the remainder in fee to the real estate deintention of the testator that “his heirs”- scribed in item 5, alienable as well as transthose who answer such description at the missable under our laws of descent, although time of his death-should take his interest such interest was subject to diminution in in the real estate as testamentary devisees favor of a child or children afterborn alive and not by inheritance. For in case the life to appellant. To hold otherwise would result tenant survived him without living children in cutting down the interest of Simeon Panat his death, the fee in remainder was de key to an estate for life, when there is noth

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