Sims v. Ratcliff

110 N.E. 122, 62 Ind. App. 184, 1915 Ind. App. LEXIS 154
CourtIndiana Court of Appeals
DecidedNovember 4, 1915
DocketNo. 9,136
StatusPublished
Cited by4 cases

This text of 110 N.E. 122 (Sims v. Ratcliff) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sims v. Ratcliff, 110 N.E. 122, 62 Ind. App. 184, 1915 Ind. App. LEXIS 154 (Ind. Ct. App. 1915).

Opinion

Felt, J.

This suit was brought by appellee against appellant to recover certain personal property, the right to which is asserted under the provisions of the will of Gilbert Ratcliff, deceased, by both litigants. The complaint shows that Gilbert Ratcliff died testate in March, 1909, and that his will was duly probated. Item No. 1 of the will provides for the payment of his debts and funeral expenses and, by item No. 5 he named his wife, Clara F. E. Ratcliff, executrix of his will. The other items are as follows:

“Item 2. I give and devise to my beloved wife, Clara F. E. Ratcliff, all the real estate of which I may die the owner, she to have and hold the same for and during her natural life. * * * Item 3. I will and devise that, at the death of my beloved wife, Clara F. E. Ratcliff, that all of my said real estate be divided share and share alike between the nearest blood relation I may have living at that time and the nearest, blood relation of my beloved wife at the time of her death; provided, that- should my beloved wife remarry and bear a child or children, then in that case, it is my will that the said child or children of my said wife shall have and hold the fee of all my said real estate. Item 4.. I will and bequeath all my personal property to my beloved wife, Clara F. E. Ratcliff, of which [186]*186I may'die the owner, she to have the use and enjoy the same for her support and maintenance, and to sell and dispose of said property for that purpose.. I suggest, however, that should any of said personal property remain intact or undisposed of at the time of her death that the same go, share and share alike, as provided for my real estate.”

It is also averred that after the death of Gilbert Ratcliff his widow intermarried with George J. Sims; that no children were born to her; that thereafter she died leaving as her only heirs at law her husband George J. Sims and her father Robert O. Richards; that during her lifetime she had in her possession a large amount of personal property obtained from her former husband’s estate, which property remained intact and undisposed of at the time of her death and is specifically described; that by the terms of the will of Gilbert Ratcliff, deceased, said property belongs to his estate and should be distributed according to the provisions of his will. Issues were formed on the complaint and the facts alleged are admitted except the claim to the personal property and the amount thereof in the possession of Mrs. Sims at'the time of her death. The court found for the plaintiff and rendered judgment in substance that the administrator of the estate of Gilbert Ratcliff, deceased, recover of and from the estate of Clara F. E. Ratcliff, deceased, $1,284.42, and ordered the amount paid by her administrator, the appellant, who was also her surviving husband. Errors are assigned on the overruling of the demurrer to the complaint, in overruling the motion of appellant to modify the judgment, and in overruling the motion for a new trial.

The questions presented all depend upon the construction of item No. 4 of the will of Gilbert [187]*187Ratcliff, deceased. Appellee contends that Clara F. E. Ratcliff was only given the use of the personal property- for her support and maintenance during her lifetime and that the portion not needed and used for such purpose, and remaining intact at the time of her death, was disposed of by the will of Gilbert Ratcliff, and should be distributed in accordance with the provisions of item No. 3 thereof.

Appellant asserts that the devisee, Mrs. Ratcliff, afterwards Mrs.-Sims, became the absolute owner of. the personal property devised to her by item No. 4 of her deceased husband’s will, and that the same is lawfully in his possession.

1. 2. In construing the will, we are to ascertain the intent of the testator from all the language used, and to give effect to all its provisions so far as possible under the law applicable thereto. The language of the first sentence of item No. 4 of the will is sufficient, if unmodified, to make the devisee the absolute owner of the personal property therein described. Fullenwider v. Watson (1887), 113 Ind. 18, 19, 14 N. E. 571; Van Gorder v. Smith (1885), 99 Ind. 404, 409, 410; Mulvane v. Rude (1896), 146 Ind. 476, 481, 484, 45 N. E. 659; Snodgrass v. Brandenburg (1905), 164 Ind. 59, 62, 71 N. E. 137, 72 N. E. 1030; John v. Bradbury (1884), 97 Ind. 263, 266.

Appellee contends that the last part of item No. 4, — “I suggest, however, that should any of said personal property remain intact or undisposed of at the time of her death that the same go, share and share alike, as provided for my real estate” — when considered in connection with the other parts of the will, and particularly with item No. 3, shows that the testator did not intend to bequeath the personal property absolutely to his wife and did not vest title in her to such part of his personal property as was [188]*188intact and in her possession at the time of her death. In effect it is contended that the will, properly construed, shows that the testator intended to bequeath the use and benefit of such personal property to his wife and that any part thereof remaining intact and undisposed of by her at the time of her death was by him devised the same as his real estate.

3. Courts have gone to great length in ascribing meaning to words and phrases used in wills in order to carry into effect the intention of the testator. But before any license is given to ascribe to a word a meaning different from its usual import, it must first appear that such meaning is evidenced by the connection in which the word is used and that it is consistent with and tends to effectuate the intention of the testator as gleaned from the whole instrument.

The word “suggest”, as generally used and understood, is insufficient to change the character of the bequest made in the first part of item No. 4. Webster defines the word as meaning: “To introduce indirectly to the thought — to propose with diffidence or modesty.” The Century dictionary defines it as follows: “To place before another’s mind problematically; hint; intimate; to introduce to another’s mind by the prompting of an indirect or mediate association.”

In devising his real estate in items Nos. 2 and 3, the testator used apt language. The same is true of the language employed in the first part of item No. 4 in disposing of his personal property. If the testator desired only to make a recommendation to his wife as to how she should dispose of the personal property he had given her, in case any of it should remain in her possession at the time of her death, the word “suggest” was appropriate for that purpose and the will contains nothing inconsistent with such meaning.

[189]*189In Williams v. Committee, etc. (1901), 92 Md. 497, 48 Atl. 930, 54 L. R. A.

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Bluebook (online)
110 N.E. 122, 62 Ind. App. 184, 1915 Ind. App. LEXIS 154, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sims-v-ratcliff-indctapp-1915.