Reports of Cases Decided in the Supreme Court of the State of Indiana Volume 143
This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1896 edition. Excerpt: ...with their obedience to her as she shall deem proper." HACKNEY, C. J.--By the first eight items of his last will, Oliver Rogers gave to each of his eight children, 113 164 373 63 five dollars, and the ninth item was in these words: -"I give and bequeath to my beloved wife Martha Rogers, the residue of all my estate, both personal and real, after all just debts shall have been paid, subject to a division among the aforesaid heirs at her death, in accordance with their obedience to her as she shall deem proper." Of the lands of which the testator died seized, the widow, upon the theory that she held a fee simple absolute, conveyed one tract, upon which a subsequent grantee executed to Winklespleck a mortgage, and she executed, upon other of said lands, a mortgage to said VVinklespeck. The appellants sued the appellees to quiet the title to said lands upon the theory that the widow, under said will, took a life estate with the remainder in fee over to the testator's said eight children. The trial court denied the correctness of this theory. The question for decision here arises upon the construction of said ninth item of the will, and if it be found that under it the widow took a fee simple absolute, the judgment of the trial court was correct, otherwise it is erroneous. The words of the item devising "the residue of all my estate, both personal and real," standing alone, Would, without doubt, carry a fee simple absolute. Ross v. Ross, 135 Ind. 367; Roy v. Rowe, 9,0 Ind. 54; McMahan v. Newcomer, S2 Ind. 565; Smith v. Jlfeiser, 51 Ind. 419. ' It devises the residuum. No estate is left in the testator, after these words, which can become the subject of reversion. If the children were given an estate in the...
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