Miller v. Keegan

Perkins, J.

Philip Henry Miller, deceased, left a will reading as follows:

“ I, Philip Henry Miller, of Campbell township, Warrick county, and state of Indiana, being poorly in health, but of sound mind and memory (thanks be to Almighty God for his mercies), do make and declare this to be my last will and testament, revoking all other wills that may have been by me made at any previous date.

“ Item. I bequeath my soul to God who gave it, and my body to the dust, in hopes of a joyful resurrection at the last day.

*503 “ Item. My will and desire is that all my personal property, except such as is hereinafter otherwise bequeathed, be sold at public auction immediately after my decease, and the proceeds thereof applied to the payment of my just debts and funeral expenses; and after these expenses are duly paid, the balance, if any, together with the amount of all notes and book accounts due me, to be equally divided between my children, viz., John Miller, Benjamin H. Miller, Hiram Miller, Isaac Miller, and William M. Miller, each to receive his part at the age of twenty-one years.

“Item. I give and bequeath to my beloved wife, Anna Miller, one feather-bed [and divers other articles of personal property].

“Item. I give and bequeath to my son, Benjamin H. Miller, a sorrel filly now claimed by him.

“ Item. I give and bequeath to my son, Isaac Miller, a blaze-faced sorrel filly.

“ Item. I give my son, Benjamin Miller, my rifle.

“Item. My will and desire is that the farm on which I now live, together with the water grist mill, be rented out, and the rents applied to the support and education of my three youngest children, viz., Isaac, Hiram, and William M. Miller, and to the support of my wife, Aima Miller, and to keep the said farm and mill in repair, until my son Isaac shall attain the age of twenty-one years. At that time, if they see cause, the mill and land to be sold, and the proceeds thereof equally divided by the said Isaac, Hiram, and William M. Miller (my wife, however, reserving to herself her right of dower in said premises during her natural life, and at her death to revert to the said Isaac, Hiram, and William); but should either die before that time, the whole to descend to the survivor; and should there be any overplus remaining out of the rent, it shall be put out on interest for the benefit of the children.”

Further items give certain farms to his other sons, and name his executors.

The will was duly proved, its validity is not disputed, and the only question raised is upon the construction of . the last item above set out.

G. Baker and J. W. Foster, for the appellants (1) . L. Q. DeBruler, for the appellees.

William M. Miller departed, this life before Isaac Miller attained the age of twenty-one years. Hiram was alive at that time. And, under the will, at that time, if not at the death of the testator, we have no doubt, the home farm and grist mill devised to Isaac, Hiram, and William M., and the survivor of them, vested in Isaac and Hiram, subject to the widow’s right of dower. If the property did not vest till the coming of age of Isaac, then, at that time, Isaac and Hiram were tenants in common of it.

The clause commencing “ my wife, however,” we regard as parenthetical, and have marked it accordingly; but the concluding clause, commencing “ and should there be any overplus,” shows clearly that the point of time then in the mind of the testator was at least as early as that of the coming of age of his son Isaac. See Moore v. Lyons, 25 Wend. 119 , and cases collected there.

And where, in the construction of such a clause of a will, there is a doubt as to which point of time it was intended the estate should vest, the earliest will be taken as being the most equitable to the heirs of all the devisees. See 4 Kent, 203, note; Id., 205, 206 ; 2 W’ms on Ex., 798; Doe v. Prigg, 8 B. and C. 231.

In 1856, Hiram deceased without issue and intestate, but leaving a widow, his mother, and his brother, Isaac.

But in 1842, after the death of William M., Isaac Miller conveyed his undivided half of the property derived from the will, to one John A. Cox, and he inherited nothing from his brother Hiram. 1 R. S. p. 251, § 25.

The plaintiffs claim title through Cox, the grantee of Isaac Miller, and should have recovered to the extent of their interest in the land.

Per Curiam.

The judgment is reversed with costs. ' Cause remanded, &c.