Opinion
No. 27,859.
Filed June 17, 1943.
1. WILLS — Construction — Nature of Estates Created — Absolute Devise — Gift of Portion Remaining Undisposed of by First Taker Void. — When real estate is given absolutely to one person, with a gift over to another of such portion as may remain undisposed of by the first taker at his death, the gift over is void, as repugnant to the absolute property first given. p. 498.
2. WILLS — Construction — Nature of Estates Created — General Devise With Power of Disposition — Limitation Over Void for Repugnancy. — Where an estate is given to a person generally or indefinitely with a power of disposition, it carries a fee, and any limitation over is void for repugnancy. p. 498.
3. WILLS — Construction — Nature of Estates Created — Property Given to Widow as Sole and Absolute Forever — Gift Over to Son Void. — A will which gave all of testator's property to his widow as her sole and absolute property forever, and which provided that if there was any property left at her death it should pass to and vest in testator's son as his sole and absolute property, gave to the widow a fee, and the attempted gift over to the son was void. p. 499.
From the Kosciusko Circuit Court; John A. Sloane, Judge.
Action by Orton V. Slater against the Akron Exchange State Bank of Akron, Indiana, executor of the last will and testament of Emma Slater, deceased, for the construction of the will. From a judgment for defendant, entered after its demurrer to plaintiff's complaint was sustained and plaintiff refused to plead further, plaintiff appealed.
Affirmed.
Claude D. Carson, of Plymouth, and Roscoe L. Egger, of Bremen, for appellant.
Loder L. Patterson, of Akron, and Brown Brown, of Rochester, for appellee.
Judgment was against appellant upon his refusal further to plead after demurrer to his complaint was sustained. The only question in this appeal is the construction to be given 1, 2. Item 2 of Truman C. Slater's will which reads:
"ITEM 2. I will, devise and bequeath all my property of which I may die seized or possessed, be it real, personal or mixed, and wherever situated, after said Item 1 of this will has been complied with, to my beloved wife, Emma A. Slater, to have and hold all of the same, as her sole and absolute property forever upon this express proviso that in event there is any property, be it real, personal or mixed, and wherever situated, left and remaining at the death of my said wife, Emma A. Slater, which she has received from me under this will, then in that event all of said property so left and remaining shall pass to and vest in my son Orton V. Slater, he to have and hold all of the same as his sole and absolute property forever after the death of my said wife."
Appellant's theory is that the will gave to Emma A. Slater a life estate with power of disposition and to him the remainder and, therefore, that he is entitled after her death, to all property taken by her under the will of which she made no disposition during her lifetime. If however she took a fee, the trial court's ruling was correct. The applicable principle is stated in Mulvane v. Rude, Executor (1896), 146 Ind. 476, 482, 45 N.E. 659, 661, as follows:
"When real estate is given absolutely to one person with a gift over to another of such portion as may remain undisposed of by the first taker at his death, the gift over is void as repugnant to the absolute property first given; and it is also established law that where an estate is given to a person generally or indefinitely with a power of disposition, it carries a fee, and any limitation over is void for repugnancy."
See also 19 Am. Jur., Estates, § 120, p. 575. Many cases so holding are collected in a note in 75 A.L.R. at p. 72. Other Indiana cases, not there cited, are Stimson v. Rountree (1907), 168 Ind. 169, 78 N.E. 331; Ewart v. Ewart (1919), 70 Ind. App. 167, 123 N.E. 180; Kramer v. Kramer (1941), 109 Ind. App. 135, 33 N.E.2d 360.
Baker v. Riley (1861), 16 Ind. 479, principally relied upon by appellant, falls in a different class of cases which are collected in the same note in A.L.R. at p. 88.
The will gave Emma Slater a fee and the attempted gift 3. over to appellant was void.
Judgment affirmed.
NOTE. — Reported in 49 N.E.2d 344.