Hibbits v. Jack.

The will was in a few days thereafter duly admitted to probate, and the widow elected to take under that instrument instead of under the statute.

The widow also went immediately into the possession of her late husband's one undivided third part of the mill and its appurtenances under the will, and so continued until the 16th day of July, 1874, when she sold, and by warranty deed conveyed said undivided third part of the mill tract of land, with the appurtenances, to Wallace Hibbits, the appellant herein, for the sum of $9,000. The sale and conveyance were made as above upon the theory that the devise of the real estate, herein above set out, was in restraint of marriage, and consequently void, and that it had, in legal effect, been so held in the case of Spurgeon v. Scheible, 43 Ind. 216, which had then but recently been decided, and that in consequence she, as widow, was the owner in fee simple of the real estate devised to her by the will.

Hibbits went into possession of the property thus sold and conveyed to him, claiming to be the owner in fee simple, and so remains in possession, having in the meantime made valuable improvements thereon. The widow still survives and has never remarried.

This was a suit by Hibbits against the widow and children of John Jack, and the surviving husbands of such children, to quiet his title to the mill property so purchased by him, alleging that the defendants, other than the widow, claim to be the owners in fee simple of such property, and that they will be entitled to succeed to, and to enter into the possession of the same after the death of the said widow, thus casting a cloud upon his title.

It is unnecessary that we shall notice all the pleadings and the proceedings upon each particular pleading. It is sufficient to state that the defendants, other than the widow, filed a cross complaint, substantially repeating the historical facts of the case contained in the complaint, alleging that the claim of Hibbits was a cloud upon their title, demanding that their title be quieted, and making Hibbits and the widow defendants to the cross complaint. Hibbits, answering the cross complaint, averred that at the time he purchased the interest in the mill property in controversy, it had been held by this court that devises to the widow of a testator, precisely similar to the one involved in this case, conferred an estate in fee simple upon the devisee, and that this construction of such

Hibbits v. Jack.

devises had been adopted by all the courts, and accepted and acted upon by all the citizens of this State; that it was consequently understood and believed by him that Susan Jack, the widow, was seised in fee simple of the real estate devised to her by her husband, and that the plaintiffs, in the cross complaint, acquiesced in that construction of their ancestor's will. Wherefore it was claimed that the plaintiffs, in the cross complaint, were estopped from asserting any claim of title to the property in dispute.

The Circuit Court sustained a demurrer to this answer, and the appellant declining to plead further, final judgment was rendered against him upon the cross complaint.

This and other rulings upon the pleadings present the questions: First. What estate did Susan Jack take under her late husband's will? Second. If only an estate during widowhood, then were her co-defendants below estopped from asserting any claim of title to the property conveyed by her to the appellant?

The last clause of section 2 of the act concerning wills approved May 31, 1852 (2 R. S. 1876, p. 571), which has ever since been in force (R. S. 1881, § 2567), reads as follows: "A devise or bequest to a wife, with a condition in restraint of marriage, shall stand, but the condition shall be void."

Counsel for the appellant, with much ingenuity, as well as elaboration and ability, argue that the devise of real estate to Susan Jack, now before us, was in its very nature, and in its practical effect continues to be, a restraint upon marriage, notwithstanding some decisions of this court in analogous cases seemingly to the contrary, and the conclusion reached in the case of Spurgeon v. Scheible, supra, affords a precedent which ought to be followed, and which in any event must be considered as having entered into and become a part of the law of this case.

Whether the terms used in a devise or bequest ought to be considered words of limitation only, or really words of condition within the meaning usually attached to that phrase, constitutes often a very difficult question for decision. For that reason many of the cases intended to illustrate the difference between words of limitation on the one hand, and words of condition on the other, are obscure, and sometimes apparently capricious and arbitrary. This results from the ever varying phraseology employed in making devises and bequests. But when questions involving that difference arise, the courts must decide them as best they can, having

Hibbits v. Jack.

reference to established precedents and the fair meaning of the words to be construed, when taken in connection with the other parts of the will. As illustrative of the difference in question, Sir William Blackstone states the rule to be as follows: "If an estate be granted to a woman during her widowhood, or to a man until he be promoted to a benefice; in these, and similar cases, whenever the contingency happens, when the widow marries, or when the grantee obtain a benefice, the respective estates are absolutely determined and gone." 2 Bl. Com. 121. And continuing at another place, says: "A distinction is however made between a condition in deed and a limitation, which Littleton denominates also a condition in law. For when an estate is so expressly confined and limited by the words of its creation, that it cannot endure for any longer time than till the contingency happens upon which the estate is to fail, this is denominated a limitation; as when land is granted to a man so long as he is parson of Dale, or while he continues unmarried, or until out of the rents and profits he shall have made 5001, and the like. In such case the estate determines as soon as the contingency happens (when he ceases to be parson, marries a wife, or has received the 5007), and the next subsequent estate which depends upon such determination, becomes immediately vested, without any act to be done by him who is next in expectancy. But when an estate is strictly speaking upon condition in deed (as if granted expressly upon condition to be void upon the payment of 401 by the grantor, or so that the grantee continues unmarried, or provided he goes to York, etc.), the law permits it to endure beyond the time when such contingency happens, unless the grantor or his heirs or assigns take advantage of the breach of the condition, and make either an entry or a claim in order to avoid the estate." 2 Bl. Com. 155.

In 2 Bouvier's Institutes, p. 272, section 1811, the same distinction is thus illustrated: "There is a marked difference between a condition and limitation, which should be remembered. A condition is a provision respecting a future and uncertain event, on the existence or non-existence of which is made to depend, either the accomplishment, the modification or the rescission of a contract or testamentary disposition. In such case the estate or thing is granted or given absolutely, without limitation, but the title to it is subject to be divested by the happening or not happening of an uncertain event. For example a man may give an estate to his VOL. XLIX — 61

Hibbits v. Jack.

wife provided she shall continue to reside on it; or he may give it to her upon condition that she shall not marry.

"The first of these conditions is lawful, and if she remove from the premises she may forfeit the estate; but the last being in restraint of marriage is void, and the wife shall take the estate unconditionally. "When, on the contrary, the thing or estate is granted or given until an event shall have arrived, and not generally, with a liability to be defeated by the happening of the event, the estate is said to be given or granted subject to a limitation; as if the estate is given while, or as long as a woman shall remain a widow, or until she shall marry, the estate being given to her only during the time of her widowhood and no longer, it determines by her marriage, and all her right to it is gone."

In 2 Wash. Real Prop. (4th ed.), p. 25, § 28, it is said: "The only general rule, perhaps, in determining whether words are words of condition or of limitation, is that where they circumscribe the continuance of the estate, and mark the period which is to determine it, they are words of limitation; when they render the estate liable to be defeated, in case the event expressed should arise before the determination of the estate, they are words of condition."

Tiedeman on Real Property, at section 281, says: "An estate upon limitation is one which is made to determine absolutely upon the happening of some future event as an estate to A., so long as she remained a widow. The technical words, generally used to create a limitation, are conjunctions relating to time, such as during, while, so long as, until, etc."

In 2 Jarm. Wills, 566, the rule concerning limitations is thus stated: "But a bequest during celibacy is good; for the purpose of intermediate maintenance will not be interpreted maliciously to a charge of restraining marriage. This is not a subtlety of our law only; the civil law made the same distinction. And no gift over is required to make the restriction in this form effectual."

The item of the will of Harmon, particularly considered by this court in the case of Harmon v. Brown, 58 Ind. 207, to which frequent reference has been made by counsel on both sides, was in the following words:

"First, I give and bequeath unto my beloved wife, Penina, during her widowhood, all my real and personal estate, to be held and freely possessed and enjoyed during her widowhood."

The widow, some years after the death of the testator, inter

Hibbits v. Jack.

married with one Brown, and the court below in that case held in effect that the item of the will set out contained words of condition in restraint of marriage, and gave judgment accordingly. This court reversed the judgment, holding that the words used in the item were words of limitation, and not of condition, and expressly overruled the case of Spurgeon v. Scheible, supra, to which reference has been made in so far as it seemingly recognized or established a different rule of construction. This case of Harmon v. Brown, supra, has either been cited approvingly or expressly followed by this court in the cases of Coon v. Bean, 69 Ind. 474; Stillwell v. Knapper, id. 558; s. c., 35 Am. Rep. 240; Brown v. Harmon, 73 Ind. 412; Tate v. McLain, 74 id. 493; O'Harrow v. Whitney, 85 id. 140.

The case of Harmon v. Brown, supra, followed the construction inferentially approved in the much older case of Rumsey v. Durham, 5 Ind. 71, to which no reference is made in Spurgeon v. Scheible, supra, and was, as it still is, supported by the prevailing, and as it seems to us unquestionable weight of authority. Coppage v. Alexander, 2 B. Monr. 313; 38 Am. Dec. 153; Vance v. Campbell, 1 Dana, 230; Rodgers v. Rodgers, 7 Watts, 15; Doyal v. Smith, 28 Ga. 262; Pringle v. Dunkley, 14 S. & M. 16; 53 Am. Dec. 110; Hawkins v. Skeggs, 10 Humph. 30; Chapin v. Marvin, 12 Wend. 538; Beekman v. Hudson, 20 id. 53.

In the case of O'Harrow v. Whitney, supra, this court held that where a husband dies, leaving a wife and two children surviving him, having first devised his land to his wife during widowhood, and she elects to accept the provision made for her by the will, her estate is limited in duration to the period of her widowhood, and that a purchaser, through a mortgage executed by the widow after a subsequent marriage, acquires no title to any part of the land. To that doctrine this court, as has been seen, is committed by a series of cases, and in the light of the authorities herein cited, and of others to which our attention has been called, from that doctrine we ought not to and hence cannot now recede.

Our conclusion therefore necessarily is that the words used in the devise before us in this case were words of limitation merely, and not of condition in restraint of marriage, and that in consequence the estate which Susan Jack took in the lands devised to her will not extend beyond the expiration of her term of widowhood. [Omitting a minor consideration.]

The judgment is affirmed, with costs.

Judgment affirmed.