Stevenson and wife v. Druley, 4 Ind. 519

Perkins, J. Disseizin. Judgment below for the defendant. Jacob Kesling, of Wayne county, Indiana, made the following will and died: “Know all men by these presents that I, Jacob Kesling, of the county of Wayne and state of Indiana, being weak in body, but perfect in mind and memory, do make and constitute this my last will and testament, in manner and form following, to-wit: “1. To pay all my just debts and funeral expenses out of my estate, by my hereafter named executors. “ 2. It is my will that my beloved wife, Mary, have one-third of all my real estate during her lifetime.

I will and bequeath to my wife one stove and my cattle; the balance of my household property, furniture and farming utensils to be sold by my executors and equally divided between my wife and Jacob W. Fisher, my grandson, excepting my clock, my horse, or the price of him, which is fifty dollars, and gears, which I will to Jacob W. Fisher. “ It is my will that my house and lot in Richmond be sold by my executors and the money on hand to be divided as follows: one-half to Jacob W.

Fisher, the other half equally divided between my wife and my son, Jesse Kesling’s, children, if he shall have any, when they become of lawful age; and if not, to be equally divided amongst my widow’s children. “I will and bequeath to Jacob W. Fisher the following discribed lot of land, to-wit: eighty acres of land lying and being in the county of Wayne and state of Indiana, and being a part of the north-west quarter of

section thirty-five, town thirteen; the said Jacob W.

Fisher to have possession of, except the widow’s dower, by his paying said widow one-fourth part for rent until he becomes of age, and no longer; all which I leave to the sound judgment and discretion of my hereafter-named executors. “ I also will and bequeath to my son, Jesse Kesling, five dollars, he having had his part heretofore. “ I also constitute and appoint my friends, William Fonts and Daniel Clark, my executors to this my last will and testament, revoking all former wills by me made, this the 18th day of February, 1829.” The subject of controversy in this suit is the land discribed in the clause of said will reading thus: “ I will and bequeath to Jacob W.

Fisher the following described lot of land, to-wit, eighty acres of land lying and being in the county of Wayne and state of Indiana, and being a part of the north-west quarter of

section thirty-five, town thirteen; the said Jacob W. Fisher to have possession of, except the widow’s dower, by his paying said widow one-fourth part for rent until he becomes of age, and no longer.” Jacob W. Fisher, assuming that he had a fee-simple in said land under the will, conveyed the same by deed in fee to William Druley, the defendant, and died. Weakly Stevenson, the male plaintiff, married Ann Maria Kesling, only child of Jesse Kesling, the female plaintiff, and they now bring this suit, asserting that Jacob W.

Fisher took but a life-estate under the will, and that, hence, upon his death, said Ann Maria, the sole heir of the Kesling line, became entitled to the same by inheritance. The only question in the case is upon the construction of the will.

To aid courts in interpreting wills, the law permits, in every case where it may be necessary, that parol evidence may be given of the circumstances of the testator, and 0f his family and affairs, in order that the Court, standing, as it were, in the situation of the téstator when makj[ng jjjg will, may, with more certainty, arrive at his intention, in giving a construction to the language he may have used to express it. Wigram on the admission of Extrinsic Evidence, 51. J. S. Newman and J. P. Siddall, for the plaintiffs. J. Perry and O. P. Morton, for the defendant.

Accordingly, in this case, the Court below permitted the defendant to give such evidence, tending to show that the property mentioned in, and disposed of by, the will, was all the property said testator owned; that he had previously conveyed to his son Jesse, to whom, by the will, he gives 5 dollars, adding that he has had his part before, a quantity of land equal to, if not exceeding in value, that given to Jacob W. Fisher, the only other and equal presumptive heir of said testator, at the time, &c.; and the question is presented in the light of this evidence, does the will clearly give to Jacob W.

Fisher a fee-simple in the land in controversy? for, in doubtful cases, the heir prevails against the terms of the will. We think it plain enough that the testator intended to give a fee-simple. Per Curiam. The judgment is affirmed with costs.