Langman v. Marbe

Monks, J.

This action was brought hy " appellants against, appellee to quiet title to certain real estate. If the lást will -of Henry Langman gave his widow the land in controversy in fee simple, this case must be affirmed, but if the will gave her only an estate for years, or for life, the case must be reversed. It is not claimed by appellants that the first clause of -the will, standing alone, did not .give the real estate to the widow in -fee simple, but they insist that the third and fourth clauses of the will reduce -the widow’s estate to an’estate-for years, and give the remainder to the children. -The third and fourth clauses' of the will provide-that when the youngest child becomes' of the age of twenty- *331 one years “the property shall he divided equally between all the children”, naming them. Provided, that- if the wife should get married before the youngest child becomes of age “then the property of the estate shall be divided equally, between the children”. '

It is settled law that when an estate in fee simple is clearly-given a person,- that the estate so given can not be cut down or modified by subsequent cláuses in the will, unless the intention .to, do so is manifest, from words as clear and certain as those which gave -the fee- simple- estate. Rusk v. Zuck, 147 Ind. 388 ; Mulvane v. Rude, 146 Ind. 476, 481 , and cases cited.'

It is true, as insisted by appellants, “that in the construction of wills, the entire instrument must be construed together, and that the intention of the testator thereby disclosed must be given effect, unless inconsistent with some established rule of law’’.” As was said, however, in Rusk v. Zuck, 147 Ind. 388 , on p. 393: “The correct test' of the effect of language apparently at variance with other parts of a, devise is whether the intent of the testator was to give a smaller estate than, the words .making the gift, standing alone, without considering -the limiting clause, import, or to impose restraints upon the estate given. The first-is lawful and effective, for the reason that the testator’s intention .is: the controlling consideration in the construction of the will. If the language, however, is used to impose a restraint on the-,estate granted, it is rarely,, if ever,, effective for the reason -that even a .clear intention cannot be permitted to overthrow the-settled rples .of law by depriving an estate of any of its.essential legal incidents.” • . .

It is evident, under the settled rule in this State, that it, cannot be said that it was the clear intention of the testator, by clauses three and.four, to-reduce the estate of the widow to one. for life or years. Ross v. Ross, 135 Ind. 367 ; O’Boyle v. Thomas, 116 Ind. 243, 246 , and cases cited.

Judgment affirmed.