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(146 N.E.)

12. Judgment ~713(2)—Judgment bar on Is- [ 20. Judgment 714(1)-Consent judgment sues adjudicated.

Judgment on the merits in court of competent jurisdiction bars subsequent action between same parties in interest, if it affirmatively appears that same issues have been or might have been completely adjudicated. 13. Judgment 668(1)—Judgment conclusive only against parties in character involved.

Judgments are presumptively only conclusive against parties in character in which they sue or are sued, though every reasonable presumption will be indulged to sustain judgment naturally assumed to be determination of issues as raised by pleadings and supported by evidence.

affects only existing titles.

Consent judgment, though valid as estoppel on all matter covered by stipulation, held to affect only existing titles, and not those subsequently acquired.

Appeal from Circuit Court, Jackson County; Jno. H. Edwards, Judge.

Suit by Beldora Burrell against Maude B. Jean and others to quiet title. Judgment for defendants was affirmed in Appellate Court on plaintiff's appeal, and cause transferred from the Appellate Court under section 1394, cl. 2, Burns' Ann. St. 1914; Acts

14. Judgment 584-Essentials of "res judi- | 1901, p. 565. cata" named.

To invoke principles of "res judicata," four things must concur, a suit, final judgment, identity of subject-matter, and identity of parties.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Res Judicata.]

15. Judgment 585 (2)-Test of res judicata stated.

Whether identical evidence supports the issues tendered in both actions is test for de

termining if former judgment is bar to present

action.

16. Judgment -736-Former Judgment, to construe will as to personalty, not adjudication of claim to realty by descent.

Reversed and remanded, with directions.
Superseding former opinion in 132 N. E.

704.

Smith, Remster, Hornbrook & Smith, of Indianapolis, John M. Lewis and Thomas M. Honan, both of Seymour, and Watson & Esarey, of Indianapolis, for appellant.

Montgomery & Montgomery, of Seymour, and J. Ross Robertson, of Brownstown, for appellees.

tion against appellees to quiet her title as MYERS, C. J. Appellant brought this acThe first paragraph of her complaint cona fee-simple owner of certain real estate. tained the ordinary allegations, and the secshe relied to show fee-simple ownership. Isond stated the facts in detail upon which sues were formed by answers and replies, which were submitted to the court for trial, resulting in a judgment in favor of appellees. The overruling of appellant's demurrer to each paragraph of affirmative answer filed by certain appellees, and the overruling 91-Consent judgment need of her motion for a new trial, are separately assigned as errors.

In action by life tenant under devise to quiet title claimed through descent, judgment, in former action between same parties, to construe will as to personalty, which also defined interests in realty as created under will, held not adjudication in present action; neither evidence, issues, nor subject-matter being the same. 17. Judgment

not be confined to issues.

Validity of consent judgment does not depend on confining it to issues presented by case in which it is rendered.

18. Infants 107-Consent judgment on matters, not within issues of cause, not binding on minor.

Consent judgment, as to effect, in will, of clause devising realty to one for life, remainder to her children, where interest in remainder vested at testator's death in minor son of life tenant, rendered in action to interpret clauses of will bequeathing personalty, held not to bind remainderman; neither he nor his guardian being able to prejudice his rights

thereby.

19. Judgment

714(1)-Consent judgment held not to fix future responsibility.

Consent judgment, in action for construction of will arising on controversy over personal estate, which also embodied declaration of the agreed disposition of realty in practically same words as will, held not to transfer or waive any expectancy of life tenant, under devise, to inherit from remainderman thereunder.

The ruling questions presented by this appeal may be indicated by a brief statement of the facts which appear both from the pleadings and the evidence at the trial.

Early in the year 1887, Henry G. Smith departed this life testate, leaving, as his only devisees, beneficiaries, and heirs at law, the appellant, a daughter, and appellee Miller, a daughter, and other children who have since died leaving the other appellees herein who are grandchildren, and one great-grandchild. The last will of Henry G. Smith was probated in the Jackson circuit court on February 5, 1887. That part of the will material to this controversy reads as follows:

"Item 5. I will and devise to my daughter Beldora Pankey, for and during her natural life, the following real estate in Jackson county, Indiana, namely: (Real estate described.) And after the death of my said daughter, I give and devise said lands to her children, and if she dies leaving no child or descendant of any child surviving her, said real estate shall be equally divided among my heirs."

By other items of this will other real estate was devised by the testator to each of his other children in practically the same language used in item 5. He also bequeathed certain personal property among his children. Some of the original items of the will were more or less modified by codicils. Item 4 of codicil 3 reads as follows:

"I give and bequeath to my daughter Beldora Pankey, all of my personal property except the roan mare and except my money, accounts, notes and certificates of stock."

During the administration of the testator's estate, a question arose concerning the division of the personal property. Thereupon the appellant in this case, on April 25, 1887, brought a proceeding against the executor in the Jackson circuit court asking for a construction of the will pertaining to the personal property. On August 28, 1887, this appellant, complying with an order of the Jackson circuit court, filed an amended complaint making all of the legatees and devisees of Henry G. Smith parties. In that complaint, founded on item 4 of codicil 3, she alleged that she was "entitled to have her title thereto declared, quieted and settled by a judgment of the court, subject always to the demands thereon for the payment of all just debts of the testator." Then follows other allegations as to the amount of the personal property of the testator, and the claim of the executor and other heirs and devisees that the will in that respect was uncertain and indefinite, although in that regard it was definite and certain, and that

"Under and by virtue of the same she became the owner of the personal property in addition to other bequests and devises made to her in said will, and she therefore asks the court for a construction of said last will and testament of the decedent and that all her rights thereunder be settled and put at rest."

Certain of the defendants to that action answered, wherein they averred:

"That under said ninth item, the plaintiff (appellant here) will be entitled to receive one-fifth part in value, less the excess of her said real and personal property over the property received by each of the other heirs aforesaid, and defendants ask the court to construe said will so that the plaintiff receive an equal share with each of the other children, viz. (naming them) from the estate of the said decedent and no more."

The ninth item of the will was in the nature of a residuary clause whereby the testator disposed of his undemised or unbequeathed property to his children equally, and to equalize in value bequests and advancements theretofore made to them by the testator.

On November 16, 1887, two of the defend

tion, were called and defaulted. Three were minors, and for these a guardian ad litem was appointed; but no answer by such guardian is shown to have been filed. Thereafter, on January 17, 1888, in the Jackson circuit court, the following judgment was entered:

tion.

"Come again the parties by their attorneys, and by consent and agreement of the parties and upon the defaults heretofore made, the court enters the decree following construing the last will and testament of Henry G. Smith, deceased. It is ordered and decreed by the court that under and by virtue of said last will and testament after the payment of funeral expenses, debts and expenses of administraAnd that by virtue of item 5 of said will, Beldora Pankey is to have and to hold for and during her natural life the real estate described in said item, to wit (describing the real estate), and after the death of said Beldora Pankey said real estate shall descend in fee simple to her children or the descendant of any deceased child in equal shares, and if she dies leaving no child or descendant of any child surviving her, said real estate shall be equally divided among the heirs of said testa

tor."

At the time of the death of Henry G. Smith, Simeon Pankey, a son of this appellant, was alive, and for aught appearing, was the only child born to this appellant either before or since that time. In the year 1889 Simeon Pankey died intestate, unmarried, and without issue, leaving his mother. appellant here, as his sole and only heir at law. Hence appellant is claiming a feesimple title to the real estate described in item 5 of the will by virtue of the laws of descent. Appellees answered by a general denial and former adjudication, wherein it was averred that in a former suit to construe the will a decree was entered to the effect that the fee-simple title to the land in question descended to appellant's son only at the death of his mother. And further answering that appellant's son never acquired an indefeasible fee-simple title to the real estate, and therefore appellant could not and did not acquire through him such title.

Three questions are submitted by this appeal: (1) In whom did the fee to the real estate described in item 5 vest upon the death of Henry G. Smith? (2) Was the issue in the instant case presented and decided in the former action wherein Simeon Pankey was a defendant? (3) Did the so-called "consent judgment" estop this appellant from thereafter inheriting from her son the real estate described in item 5?

An answer to the first question would seem to require that we give some attention to the will of the decedent, Henry G. Smith, and especially to item 5 thereof. That item had to do with real estate only, and thereunder it is claimed by appellant that Simeon Pankey, upon the death of the testator, took

(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 death in the lifetime of the life tenant.

All parties concede that by item 5 of the will at bar testator gave to Beldora Pankey, now Beldora Burrell, this appellant, an estate for life. The various contentions here submitted by counsel for each of the parties relate to that part of the same item wherein the testator disposed of the fee. The several conclusions drawn, based upon different meanings, attributed to the wording of this will, are exceedingly persuasive that a correct result in this matter may be reached only by a resort to established rules for the construction of an ambiguous will.

[1, 2] For this purpose, there are many fixed rules which the court may call to its aid when the intention of the testator is not clearly expressed, or when, to give effect to such intention, a well-established rule of law will be contravened. In the case at bar it is only necessary that we keep in mind that "the law looks with disfavor on postponing estates, and the intent so to do, must be clear and not arise from inference or construction; it presumes that words postponing the estate relate to the beginning of the enjoyment of the remainder, and not to the vesting of such an estate." In the absence of a clear intention to the contrary, it vests "remainders absolutely, rather than contingently or conditionally; partial intestacy will be avoided if possible." Alsman v. Walters, 184 Ind. 565, 570, 106 N. E. 879, 111 N. E. 921; Aldred v. Sylvester, 184 Ind. 542, 111 N. E. 914; Busick v. Busick, 65 Ind. App. 655, 115 N. E. 1025, 116 N. E. 861.

Appellant insists that the will in question gave Simeon Pankey a fee absolute; while appellees, by way of argument, meeting appellant's insistence, say that "similar devises were made to each of his children, and under the suggested construction, if any of them died after the testator without surviving issue, he would have died intestate as to real estate given for life to such child, since no disposition of the fee in that case would have been made"; that "the testator had no heirs in his lifetime, and hence the provision that 'said real estate shall be equally divided among my heirs' has reference to a death after his own decease."

The suggestion of partial intestacy, and that the testator had no heirs in his lifetime, is submitted as evidence of intention on the part of the testator to devise a conditional fee only to appellant's children, subject to be divested in case they or their descendants did not survive her, whether she died before or after the testator. Counsel for appellees evidently had in mind a rule forbidding, if possible, a construction of a will which would result in partial intestacy. Myers v. Carney, 171 Ind. 379, 86 N. E. 400; Keplinger v. Keplinger, 185 Ind. 81, 113 N.

[3] Referring to the will, we find this statement: "After the payment of my debts and funeral expenses I dispose of my property, as follows." Following this statement, the first six items dispose of certain tracts of real estate specifically described, and item 5, as we have seen, and not unlike some other items devising real estate, concludes with the statement:

"And after the death of my said daughter, I give and devise said lands to her children, and if she dies leaving no child or descendant of any child surviving her, said real estate shall be equally divided among my heirs."

Item 9. "The other property I may die possessed of shall be so divided among my children as to make them equal in value, taking in consideration the advancements heretofore made to them, and taking in consideration the value as fixed by me to the real estate devised to each one, as set forth in my account book. If any one or more of the abovenamed parties shall be dissatisfied they shall * And the take no part under this will. portion devised or bequeathed herein to such as are or shall be dissatisfied as aforesaid shall be equally divided among my other children."

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The foregoing excerpts taken from the will evince an intention on the part of the testator to thus dispose of all of his property. If this be true, then, by statute:

"Every devise, in terms denoting the testator's intention to devise his entire interest in all his real or personal property, shall be construed to pass all of the estate in such property, including estates for the life of another, which he was entitled to devise at his death." Section 3123, Burns' 1914; section 2567, R. S. 1881.

Obviously, from the language of the will, Henry G. Smith intended to make provision for his daughter, this appellant, and for her children. She and her child, Simeon Pankey, survived the testator. Simeon Pankey, in 1889, then about 18 years of age, died, survived by his mother, who is still living. At this point we are concerned chiefly in determining the interest of Simeon Pankey in the real estate described in item 5 upon the death of his grandfather in 1887.

If Simeon Pankey took the fee contingent on surviving his mother, the contention of appellees would seem to have merit. But such intention of the testator must be apparent from his language, and not the result of construction. For, as we have seen, and as pointed out in the case of Alsman v. Walters, supra, the law favors the vesting of remainders at the very earliest possible moment. It will serve no good purpose for us to again analyze the various cases, or to restate the rules for the construction of wills and step by step apply them to the circumstances upon which the present question is predicated. That was done in the opinion in the Alsman Case. The rules of law there

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

[4] It may be well to state that the word "after," as used in the phrase, “and after the death of my said daughter," under the rules to which we have referred, undoubtedly has reference to the time of survivorship and to the death of the testator in preference to the death of the first taker. It, as well as the words immediately following, standing alone as they are here, are words of postponement and pertain to the beginning of the enjoyment of the estate by the remainderman, and not to the time of vesting the interest. Archer v. Jacobs, 125 Iowa, 467, 101 N. W. 195; Kinkead v. Ryan, 64 N. J. Eq. 454, 53 A. 1053; Beatty's Adm'r v. Montgomery's Ex'x, 21 N. J. Eq. 324. But it is said that this line of reasoning will lead to partial intestacy, and such was not the intention of the testator.

[5, 6] We are not unmindful of the rule that the intention of the testator to dispose of all of his estate must be upheld, if possible. Under our construction of the present will, such would be the result, and partial intestacy avoided. The infirmity of appellees' propositions and argument rests upon what we regard as an erroneous assumption that the language, "if she dies leaving no child or descendant of any child surviving her," means the death of the life tenant at any time without surviving children; that is to say, that such death without surviving children, whether before or after the death of the testator, can make no difference. Furthermore, counsel for appellees seem to be under the impression that the phrase "said real estate shall be equally divided among my heirs" is evidence of an intention that the interest in remainder in the real estate should not vest absolutely until the death of the life tenant. Neither of the foregoing propositions can be sustained. It is true, at the time the will was executed, the testator, in law, had no heirs, nor was the will at that time effective for any purpose. Not until his death did the will speak. Hence the words, "his heirs," coupled with his name, would not be subject to the same interpretation as would the same words following a named devisee. The will, at his death, spoke as an instrument transferring property or an interest therein by purchase to the persons thereunder entitled to receive the same. The words "his heirs" were evidently used advisedly to designate the person or persons who are called to succeed him as owner or owners of the real estate in question by op eration of law. Without doubt, it was the intention of the testator that "his heirs" those who answer such description at the time of his death-should take his interest in the real estate as testamentary devisees and not by inheritance. For in case the life tenant survived him without living children

of a child or children thereafter born to the life tenant. While the interest thus devised to his heirs might be perpetual, yet it was subject to be determined by an event expressed in the instrument creating it, and consequently such heirs would be vested with a determinable fee only. In other words, in the present case at least one of two contingencies must happen before a fee-simple interest would ripen in testator's heirs: First, death of the life tenant prior to that of the testator without a child or children living at the time of the latter's death; and, second, death of the life tenant after that of the testator without a child or children born alive to her after his death.

In McIlhinny v. McIlhinny, 137 Ind. 411, 418, 37 N. E. 147, 149 (24 L. R. A. 489, 45 Am. St. Rep. 186), it was said:

"Accordingly, it has been held by this court, and so ruled at common law, that a valid remainder might be limited on a particular estate for life, to unborn children, and, on their birth during the life tenancy, the remainder would immediately vest. The remainder is contingent before, and vested after, the birth of the re

mainderman."

Furthermore, in Alsman v. Walters, supra, it was held that

"Where a life estate is carved out, with a gift over to children of the life tenant, the testator's death, but also all who may come gift not only embraces the children living at into existence during the life tenancy."

See, also, Coquillard v. Coquillard, 62 Ind. App. 489, 113 N. E. 481.

In the instant case, the life tenant, at the time of the death of the testator, had a living child who, under the rules for the construction of wills above pointed out, we hold, was given the fee in remainder, conditioned only to the extent of having his share diminished by other children thereafter born alive to appellant.

[7-9] It will not do to say that, by the application of settled rules, results will follow which had not occurred to the testator. We are only concerned in brushing aside such rules in case of an expression of a clear intention of the testator justifying such action. If he had intended that this appellant should have only a life estate in any event, or that her children should take the fee in remainder contingent upon, their surviving the life tenant, he could easily have said so. We therefore conclude that Simeon Pankey, upon the death of Henry G. Smith, was vested with the remainder in fee to the real estate described in item 5, alienable as well as transmissable under our laws of descent, although such interest was subject to diminution in favor of a child or children afterborn alive to appellant. To hold otherwise would result in cutting down the interest of Simeon Pan

(146 N.E.)

were in the former case put in issue and tried, or might, within the issues framed, have been completely adjudicated. Gutheil v. Goodrich, 160 Ind. 92, 66 N. E. 446; Walb v. Eshelman, 176 Ind. 253, 94 N. E. 566; Beveridge v. New York, etc., R. Co., 112 N. Y. 1, 19 N. E. 489, 2 L. R. A. 648; Eckert v. Pickel, 59 Iowa, 545, 13 N. W. 708; Cromwell v. Sac County, 94 U. S. 351, 24 L. Ed. 195; Russell v. Place, 94 U. S. 606, 24 L. Ed. 214.

ing in the will to warrant it. Limited to the same parties in interest, if it affirmativethe point now being considered, and as there-ly appears that the present matters in issue on advised by the record before us, the will of Henry G. Smith gave to appellant a life estate, and to her son, Simeon, the fee in remainder which, upon his death, descended to his mother subject to the interest of a child or children to her born alive thereafter. And, we may here add, the contingency of appellant giving birth to another child or children alive is determined only upon her death. Dustin v. Brown, 297 Ill. 499, 130 N. E. 859. But, should one or all of such children die intestate, unmarried, and without issue during the lifetime of the mother, she would inherit from such child a parent's share.

[10] The two estates, possession and remainder, constituted the whole estate of which the testator died seized, and the uniting of these estates in one person, as was done, is all that is required to vest the fee in such person, subject, however, in this case to the contingency above noted.

[13] Whether the issue in the instant case was put in issue, and either affirmed or denied in the former decision, is a question obviously material to the rights of those who did not give their consent to the former judgment. The entire evidence submitted on this subject is the pleadings in both actions. The issues between litigants in a contested case are defined by the pleadings, and the admission of evidence is controlled by the issues. Hence it is perfectly natural to assume that the findings upon a trial were supported by the evidence, and the judgment a judicial determination of the issues. While every reasonable presumption will be indulged to sustain a judgment as entered, yet

judgments are presumptively only conclusive against parties in the character in which they sue or are sued." McBurnie v. Seaton, 111 Ind. 56, 12 N. E. 101; Paul v. Barnbrook, 58 Ind. App. 607, 106 N. E. 425.

[11] Appellees further confidently insist that if the foregoing construction of the will of Henry G. Smith be correct, appellant is barred from asserting any interest other than a life estate in the real estate in question by virtue of a judgment entered by the Jack-the rule long recognized by this court is "that son circuit court January 17, 1888, in an action wherein appellant was the sole plaintiff, and certain of these appellees and others, privies to the parties to that action were the defendants. The judgment thus relied on, in so far as the same is material here, appears in the preliminary statement of this opinion. The answers averring former adjudication were challenged by demurrers for want of facts, in that, the pleadings in the former action were not incorporated in either of these answers. Each of the answers embodied the judgment relied on, and averred facts showing that the point at issue in the instant case was formerly adjudicated between the parties to the present action. They were sufficient to withstand the demurrers. McSweeney v. Carney, 72 Ind. 430; McCarty v. Kinsey, 154 Ind. 447, 57 N. E. 108; Johnson v. Knudson-Mercer Co., 167 Ind. 429, 79 N. E. 367.

Appellees contend that the interests of the several parties in the real estate devised by the Smith will was an issue adjudicated in the former suit. On the other hand, appellant insists that no such issue was tendered by either of the parties to that suit, and therefore the judgment, in so far as it pertains to the real estate, was coram non judice and void. These contentions submit the question: Was the point at issue in the case at bar adjudicated in the former suit? This question is said to be one of fact. McSweeney v. Carney, supra.

[12] A judgment, if rendered on the merits in a court of competent jurisdiction, will constitute a bar to a subsequent action between

[14] In these considerations, it is important to remember that "The party who invokes the doctrine of former adjudication must be one who tendered to the other an issue to which the latter could have demurred, or pleaded." In other words:

"Ordinarily, four things must concur before the principles of res adjudicata can be invoked: (1) A suit. (2) A final judgment. (3) Identity of subject-matter. (4) Identity of parties." Jones v. Vert, 121 Ind. 140, 22 N. E. 882, 16 Am. St. Rep. 379.

[15] Another rule, and one which is said to be the best test for determining whether a former judgment is a bar to a present action, is: Will the same identical evidence support the issue tendered in both actions? Freeman on Judgments (4th Ed.) § 259; Johnson v. Knudson-Mercer Co., supra.

[16] An examination of the pleadings in the former case will disclose a controversy involving the construction of certain items of the Smith will pertaining to the disposition of personal property only. These items in no manner affected the interest or title of the devisees to real estate. The real point in issue was the adjustment of the rights of the several parties in the personal estate which, in the end, amounted to a direction to the executor in the discharge of his duties in the settlement of his trust. The issue for

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