189 Ind. 601 | Ind. | 1919
This action is brought by the Logansport Loan and Trust Company, administrator de bonis non, with the will annexed, of the estate of Levi H. McKaig, deceased, for construction of the will of said testator. The particular' clause in the will of which construction is asked is as follows:
*603 “I give and bequeath to my sister, Martha Watts, the north half of the southwest quarter of section sixteen, .in Noble Township, Cass county, Indiana, to have and to hold the same for and during her life. On her death I direct that the said land be sold by my executor and the proceeds thereof be equally divided between the children then living of my brothers, John F. McKaig and Watson C. McKaig.”
The complaint alleges that said Martha Watts died in September, 1915; that the executor is taking proper legal steps to make a sale of the real estate described in the quoted clause; that both John F. McKaig and Watson C. McKaig, named in said clause, are now dead; and at the time of the death of said Martha C. Watts certain of the defendants were the living children of said John F. McKaig; and that said Watson C. McKaig was never married and left no children. That at the time of Martha C. Watts’ death there were six living children of Robert N. McKaig, another brother; that said children of Robert N. McKaig are claiming and asserting that there was an error and mistake made in the preparation and writing of said will on the part of the scrivener who prepared the same; that it was the intention and purpose of said testator to name the children of his said brother Robert, instead of the children of his brother Watson ; that the testator intended the name of ■ Robert N. McKaig to be written into the will instead of the' name of Watson C. McKaig; and that the children of Robert N. McKaig are claiming they are entitled to share equally in the proceeds of the sale of said property with the children of John F. McKaig. That the children of John F. McKaig are asserting that they
To this complaint all the heirs at law and beneficiaries named in the will were made defendants.
The appellants, who are the children of said brother Robert, filed an answer in which they allege in substance the same facts which are recited in the complaint; and, particularly, allege an error and mistake made by the testator and the scrivener, in that the name of Watson C. McKaig was written in said will instead of the name of Robert N.; and that the testator intended the name Watson C. written therein to be Robert N.; and that they are therefore claiming to be entitled to share equally with the children of John F. McKaig in the proceeds-of said real estate.
They further allege that they “neither admit nor deny the other allegations in said petition contained for the reason that they have no certain information as to these facts, and demand that as to these facts proof be made. All other facts alleged in said petition not herein traversed or admitted are denied.”
To the administrator’s complaint the children of John F. McKaig filed.answer in which they admit all the facts in the complaint alleged; and aver that
No replies were filed to these answers. The children of Bobert N. McKaig filed a cross-complaint, which was amended, to which they made the administrator and all of their codefendants parties. They set out the relationship of the various parties to the testator as his heirs and under the will. They describe the same controversies described in the complaint and the answers thereto, and allege facts showing a mistake of the testator, and that there exists a latent ambiguity in the will.
The children of John F. answered the amended cross-complaint: “That said decedent was intimately acquainted with all of his said brothers and knew the name of each of them, and was not in the habit of referring to and speaking of his brother, Bobert N. McKaig, by the name of Watson C. McKaig, or of speaking of Watson C. McKaig by the name of Bobert N. McKaig; and at said date the said Watson O. McKaig, although an unmarried man, was in good health and under fifty years of age.”
To this answer the cross-complainants replied' by general denial; and Bobert N. McKaig answered' the complaint and amended cross-complaint by disclaimers. The cause was tried, and, at the request of all the parties, the court made a special finding and stated its conclusions: (1) That there is no ambiguity latent or patent, in said will; (2) that the children of said John F. McKaig are entitled to all thé proceeds aris
Appellants allege that the court erred in each of its conclusions of law, and in rendering judgment on the facts found and the conclusions stated, and in overruling the motion for a new trial.
The issue thus presented to the court on the complaint herein, briefly stated, was: (1) Whether there was a latent ambiguity in said will; and (2) whether, if Robert’s children are excluded, -the children of John take all or only half of the proceeds of said real estate, i. e., whether decedent was intestate as to one-half of said proceeds.
The exceptions to the conclusions of law are not sustained.
The cross-complaint is directed against the administrator and all codefendants named in the complaint, and not against any other parties; .it seeks a construction of the will and nothing more; therefore, it tenders only the same issue that is made upon the complaint.
An admission thus made in an attempt to duplicate an issue already made in the same cause, being improper and immaterial, does not in itself operate to overthrow a result reached upon the same issue made upon the complaint in the trial of which latter issue no such admission is made.
The judgment below is affirmed.