McCray v. Lipp

35 Ind. 116

• Court: Indiana Supreme Court
• Decided: May 15, 1871
• Status: Published

Opinions

Downey, C. J.

Suit by the appellants against the appellees to recover the possession of certain real estate. There was a trial by the court, and a finding and judgment for the defendants. The plaintiffs claimed as the heirs of John McCray, Sen., while the defendants claimed as the grantees of John McCray, Jr. The title of John McCray, Jr., depended on the will of his father, which is as follows:

“ In the name off God, Amen,

“I, John McCray, of Clinton county, and State of Indiana, being sound in memory and understanding, thanks be to Almighty God for the same, being mindful of my mutability, do make and constitute this my last will and testament.

“ First and principally, I commend my spirit to God that gave it, in hopes of a joyful resurrection, and body to the earth, when it shall please God to separate my soul and body, to be burled decently. And as to such worldly estate which it hath pleased Almighty God to bless me with, I give and dispose as follows:

“ (Items.) It is my will, I do order and direct that all my debts and funeral expenses be paid. I do order, and nominate, and appoint my friends, William Douglass and John Douglass, both of Clinton county, to be my executors of this, my last will and testament

“ It Is my will that my son James shall have sixty dollars out of my estate. It Is my will that my son Samuel, I allow him eighty dollars, to be paid out of my estate. And it is my will that my three daughters, Elinor, Martha, and Mary, ±0 have one hundred dollars each, to be paid out of my ■estate; and it is my will that my son John shall have that ■'land as follows: the south-west quarter of section twenty-two, in town twenty-two, north of range one west, to be for his use his life, and then to fall to his heirs. And it is my will that my sgh William shall have all that lot in the prairie, being the west half of the south-east quarter of section eight, in town twenty-one north of range one west, and the west half of the south-east quarter of section twenty-nine, and the east half of the south-west quarter of the southwest quarter .of section twenty-nine, in township twenty-two, north of range onewest, being the place on which. Irwin lives. And further, it is my will that my son William shall keep his mother her lifetime, but give her the choice to live with him or any of his brothers or sisters when she please. And further, it Is my will that all the money that shall be on hands after all the debts and legatees be paid, William shall have, to keep his mother, and the use of the family while they live together. And further, it is my will that the children all live together and work together until the (y) take (break) up housekeeping themselves. And it is my will that the wagon, gears, and horses shall belong jointly to my sons John and William,'for the use of the place and family. Again, it .is my will that if the money due me in Virginia cannot be collected, or any part of the same, all the legatees shall lose a part,, according to their portions. And further, I allow the carriage to be sold for the benefit of the family. I publish this, and no other, to be my last will and testament.”

If John McCray, Jr., took the fee under the will, then the defendants, as his grantees, were the owners of the land, but if he took only a life estate, the plaintiffs, as the heirs of John McCray, Sen., are the owners. A majority of the court are of the opinion that that part of the will which says, “ And it is my will that my son John shall have that land as follows: the south-west quarter of section twenty-two, in town twenty-two, north of range one west, to be for his use his life, and then to fall to his heirs,” gave to John the fee simple, according to the rule in Shelley’s case.

Parol evidence was offered to show the condition, character, and habits of John, with a view of raising an inference that his lather, did not intend to. entrust him with the fee simple; and also, it was proposed to prove the declaration of the father, at the time of making the will, that he only intended to give John a life estate. We all agree that the latter evidence was properly excluded; and a majority of us agree that the other evidence was also properly excluded. We think that the law fixes the intention of the testator, and that, in a case, like this,parol evidence cannot be admitted to show any other intention. The father having given a life estate to John, and having limited the remainderto his heirs, by the same conveyance, John took the fee.

Under the rule in Shelley’s case, the fee passes in opposition to the apparent intention of the testator. See Siceloff v. Redman's Adm'r, 26 Ind. 251, and the cases there cited. It could not be useful to allow the introduction of parol evidence, with the view of ascertaining the intention of tlie testator, when that intention cannot, under the rules of law, be made effective, when it is ascertained.

The judgment is affirmed, with costs.