Case v. Haggarty

Reese, C. J. This is an action in partition. The owners of the legal title appear to have all been made parties, as well as certain mortgagees. There are two mortgagees, one holding a mortgage on the whole of the land, executed by the ancestor in his lifetime, and over which there is no contention; the other, executed to defendant Shirley E. Davis by one of the three heirs in her lifetime upon the undivided one-third of the land. She died before coming into possession of the estate, and the validity of the mortgage is contested by her children and heirs. The owner of this mortgage answered setting up his mortgage. A referee was appointed to partition the land. He reported that partition could not be made without loss, when the court [747] directed bim to sell tlie property, which he did, and reported accordingly. The sale was confirmed, and the court found due defendant Davis the sum of $522.75, declared it a lien on the one-third interest of Rose Kline, deceased, the mortgagor, and ordered so much of the proceeds of the sale of the one-third interest paid to the mortgagee. The defendants Zetta Pechota and Burton H. Kline, the children and heirs of Rose Kline, applied for a modification of that part of the decree which provided for the payment of the Davis mortgage, insisting that it was not a lien upon their one-third interest. They set up a will which liad been executed by their grandfather, Henry P. Hill, the father of their mother, Rose Kline, and, upon construing the provisions of the will, the court held that the mortgagor, Rose Kline, having died during the lifetime of the widow, her mortgage created no lien as against her heirs. The decree was modified accordingly. Davis appeals. Divesting the case of all technical questions as to the procedure, the case must turn upon a. construction of the will of Henry P. Hill, the father of the mortgagor,, and the grandfather of her two children, who are resisting the foreclosure of the mortgage. There is no question presented as to the bona fides of the mortgage, or any claim that it was not given to secure a just debt. The provisions of the will must be considered. The second, third and fourth clauses, or paragraphs, are as follows: “2nd. I give and bequeath to my beloved wife Hannah O. Hill, in lieu of homestead and dower, the use during her natural life, of the southwest quarter of section 17, of town (ship) 6 north, of range 4 east, Saline county, Nebraska, provided that she shall keep the taxes paid thereon and the interest on the incumbrance that may be thereon at my death. The intention being that this bequest shall release all my other real estate of which I may die seized or possessed of all claims of dower or other interest by my said wife, and that at her death said property shall descend to my heirs share and share alike, that [748] is to say, to my now living children, viz., Susan Case. Beatrice Davidson and Bose Kline shall each be entitled to a one-third interest in said property, but should either of my .said daughters die before my said wife then the portion that would have gone to her shall descend to her children share and share alike and should either of unsaid daughters die without issue then it is my desire that the portion that would have gone to her shall go to the surviving sisters, or their heirs. “3rd. I direct that my three daughters above named shall have the east half of the northwest quarter of section 20, in township 6 north, of range 4 east, Saline county, Nebraska, that is to say, the mortgage if any that may be on said premises at my death, shall be first paid from the proceeds of the sale of said premises and the remainder from the sale, of said premises shall be divided among my ■said daughters, share and share alike. “4th. It is my desire that all the rest and residue of my estate of whatever kind or nature, shall be divided equally among my said daughters or their heirs. It being my intention to bestow upon them equally all of my estate whatsoever, real or personal, as soon as practicable after my death, except the use of said southwest quarter of section 17, of town (ship) 6, range 4 east, Saline county, Nebraska, which my beloved wife Hannah C. Hill shall have during her natural life in lieu of homestead, dower or other interest or claim in my said estate as aforesaid.’- The will was executed on the 6th day of October, 1899, and the testator died on the 12th day of March, 1902. The will was admitted to probate. The mortgage was executed by Bose Kline and her husband on the 6th day of October, 1906, and she died on the 18th day of October, 1908, leaving no will. Hannah C. Hill, the widow of Henry F. Hill, died intestate on the 2d day of January, 1909. It is insisted that, since Hannah O. Hill outlived the daughter and mortgagor, Bose Kline, she, the said Bose Kline, liad no such interest in the devised premises as to enable her to create a lien on her undivided interest [749] as against ber heirs, and therefore the mortgage is void as to them; while, upon the other hand, it is contended that she held the fee title subject to the “use” during the lifetime of the mother. If the former, the mortgage created no lien. If the latter, it did, and is subject to foreclosure. It will be observed that by the second paragraph of the Avill the use of the property is devised to the surviving widow during her life, upon certain conditions. This conferred a life estate upon the widow, but subject to the conditions named in the proviso. Did it confer more? It is one of the canons of construction that in construing a will the court must resort to the whole thereof and from all its provisions seek to ascertain the intention of the testator and give it effect. In so far as the rights of the widow were concerned, Ave find no provision which can be construed as vesting the title tó the property in her, except to the extent of giving her the use of the land during her life, which implies a life estate. It is provided that at her death the property ,in dispute shall “descend” to the heirs named, Rose Kline being one, share and share alike. The meaning of the Avord “descend” does not always refer to the vesting of title. It may refer to the enjoyment of the estate. “The word ‘descend,’ in a will devising testator’s property to certain persons, but, if he left no child or children, then directing that the property was to descend to others, Avas construed to have been used in the sense of the words ‘go to.’ ” 3 Words and Phrases, 2012-2014, and cases there cited. In the sense in which the Avord is used in the will, this is perhaps the definition to be here applied. Paraphrasing the language of the will to this extent, it reads that at the death of the wife the land “shall go to my heirs share and share alike, that is to say, to my now living children, viz., Susan Case, Beatrice Davidson and Rose Kline shall each be entitled to a one-third interest in said property, but should either of my said daughters die before my said wife, then the portion that would have gone to her shall go to her children share [750] and share alike and should either of my said daughters die without issue then it is my desire that the portion that would have gone to her shall go to the surviving sisters, or their heirs.” By the language used, it seems clear that it was the intention of the testator that the fee title should vest in the three living children, only upon the condition that they should outlive their mother, and, in case of their not doing so, the title should go to their children by force of the will; that whatever interest the daughter would have should terminate at her death, if that event occurred before the death of the widow, and upon such death the interest she would have had should go to her children. If this is the proper construction, not only the interest of Rose Kline but that of her mortgagee was terminated by her decease. The decree of the district court is Affirmed.