Webb v. Donaldson

Napton, Judge, delivered the opinion of the court. This action was brought under sections 53 and 54 of article 5, of the Practice Act. (Wagn. Stat., 1022.) The plaintiff claims, in his petition, to be the owner in fee of the N. E. qr. of S. W. qr. of S. 16, T. 52, E. 28, and to be in possession of the same; and he avers that defendants claim adversely, and prays that defendants may be summoned and ordered to institute a suit to try the alleged title. The defendants admit the possession of plaintiff. They, however, set up that one Hodges was, in 1842, the owner; that Hodges made a will, by which he devised to his wife, Olivia, “his entire estate, real and personal, to do with, manage and control, during her natural life, and for the use and benefit of raising and schooling his four children;” tobe equally distributed among 1ns four children after her-death ; that said will, after the death of said Hodges was duly probated on February 7th, 1848 ; that, subsequently, in February, 1873, the will was again proved before the Common Pleas Court of Eav county, a conrt then invested by law with probate jurisdiction. It is further stated in the answer, that prior to the death of Hodges, two of his children, named in his will, died intestate, underage and unmarried ; that after his death a third child died unmarried, leaving his mother and brother surviving, his only heirs; and, consequently, that the surviving son was, under the will, and by virtue of the death of his brother, the owner of three-fourths of the estate, subject, however, to the life estate of the widow. The defendants then aver that they are informed that the interest claimed by plaintiff, is the said life estate of the [396] widow of .said Hodges, or whatever interest they may have acquired from her. The defendants aver that they own the interest of the surviving son. under the will and derived from his brother; but that it is subject to the life estate of the widow, who is still living and they therefore can bring no legal action to recover possession. The case was tried on these pleadings, no evidence being offered by either party, and the court entered judgment for plaintiff, requiring the defendants to bring an action to try the title without unnecessary delay. Various instructions were asked and those for the plaintiff were given, and those asked by the defendants were refused. Motions for a new trial and in arrest were also made and. overruled, and exceptions duly taken to all the rulings of the court. It is unnecessary to set out the instructions or the motions, as it is obvious that the merits of the case depend entirely on a single question presented by defendants’plea. The defendants assume that by a proper construction of Hodges’will, his widow was only entitled to a life estate, and, consequently, upon the termination of this life estate, the surviving son of the deceased father was, by virtue of the will and b.y reason of the death of his brother, the owner in fee of three-fourths of the estate; but that the widow, who is asserted to be still living, or her grantee, the plaintiff, is entitled to the possession during the life of said widow. What action, then, were the defendants to bring? It is dear that they cannot maintain ejectment, as they do not claim any right.to the present possession. If there be any form of proceeding to settle the construction of the will and determine who has the fee simple, after the termination of the life estate, the plaintiff can as well maintain such suit as the defendants. The obje'ct of this action is to enable a person in possession and who therefore can bring no possessory action, to compel an adverse claimant to bring his ejectment, and so have the [397] title settled. But where the adverse claim is simply of a remainder, and does not conflict with the-possession or right of possession of the plaintiff, and the defendant can bring no action at law to settle the title, the case is not within the provisions of the statute. It may be convenient to the plaintiff to ascertain the quantity of his estate, whether for life, or years, or in fee ; but these sections of the practice act were not designed to remove such inconveniences, and the parties are left to pursue such remedies as the law already afforded. The defendants claim no present interest in the property adverse to the plaintiff, and if it is desirable.to ascertain who has the future interest, dependent on the life estate, it is just as much in the power of the plaintiff to bring a suit to try such question as it is in the power of the defendants. The judgment is reversed; the other judges concur.