58 Ind. App. 621 | Ind. Ct. App. | 1915
On October 22, 1890, James T. French departed this life, testate, at Posey County, Indiana, where he left an estate, consisting of personal property and 210 acres of farming land. The rents and profits and the title to an undivided five-ninths part of the real estate are involved in this litigation which calls for the construction of the will in so far as it provides for the creating of a trust in the testator’s property. His widow and nine children were made his beneficiaries. The part of the will necessary to a presentation of the questions raised on appeal is as follows:
‘ ‘ I hereby will and bequeath to my beloved wife, Esther C. French, all of my real and personal property to be held by her during her natural life to manage, use and enjoy by her during her life. I desire that the farm shall be cultivated as heretofore by myself for the benefit of my wife, first, second for the benefit of my children after my wife has been supplied with a sum sufficient to keep her but none of my real estate shall be sold or divided during my wife’s lifetime. Third, I will designate as trustees for my wife F. M. Greathouse, R. W. Highman and William H. French, it is my will that they advise with her during her lifetime and after her death they shall settle her estate. They shall call all the heirs together and make a fair and equal division of all the property both real and personal. I don’t desire that the farm shall be sold unless said heirs may sell to each other. Fifth. It is my will that my wife, Esther C. French shall act as executor of my last will and testament, with the assistance of the commissioners to help and advise with her on business. I further ad'"vise.that when her cash capital shall exceed Five Hun*624 dred Dollars from sale of property and rent of land to an amount say one thousand dollars, the commissioners and my wife shall call all the heirs together and make an equal divide of the money on hands except Five Hundred Dollars which shall be kept on hand for my wife’s support. Each of said heirs shall receipt their mother for the amount they receive and the same shall be kept by her until her death. I further advise that my wife shall make one of the commissioners treasurer as clerk for her. Either F. M. Greathouse or R. W. Highman to take charge of the business and tend to renting the farm. For which she shall pay a reasonable amount for the time spent. I desire that the farm shall be rented to some one of the heirs and recommend that the farm be kept in good state of cultivation by clovering well.”
Esther C. French, widow of James T. French, departed this life December 14, 1908, and following her death, appellants brought suit against appellees for an accounting of the rents and profits of an undivided five-ninths of the real estate mentioned in the will, and by a second paragraph of complaint they sought partition thereof. Numerous pleadings were filed on the part of appellants, including a cross-complaint by appellants, William H. French and Francis M. Greathouse, by which they asked to .reform the description of certain deeds executed to them by appellees, for appellees’ undivided interest in the real estate and to quiet the title thereto. It is unnecessary to dwell further upon the pleadings and the issues joined, as the errors assigned question the correctness of the conclusions of law rendered by the court upon the facts specially found.
A brief summary of the' facts discloses that James T. French, at the time of his death, was the owner of the real estate mentioned in the will, and appellants, George S. French, Christopher C. French, Charles D. French, Maria E. Pitts and Louanna Wilson, and appellees, William H. French, Margaret Greathouse and Sallie Highman, are his heirs. Thomas J. French, another heir, is not a party to this appeal. Appellee Robert W. Highman is the husband
In rendering its conclusions of law the court charged the trustees with the rents and profits from the time they took the management of the trust estate to the filing of the suit, irrespective of the deeds of conveyance, holding that the trustees, in accepting the trust, took the legal estate in the land for and during the life of the widow, and that the rents and profits could not be disposed of by the appellants and that the attempted conveyances to the trustees of the rents and profits were void. There is no complaint as to the result reached in this connection, and it becomes material’ only in so far as it throws light on the branch of the case covered by the second paragraph, which is, In whom is the title to the undivided five-ninths part of the real estate conveyed or attempted to be conveyed by appellants to appellees, William H. French and Francis M. Greathouse? The court found for appellees William H. French and Francis M. Greathouse upon their cross-complaints, that the deeds from appellants to them were effectual to carry the entire title of appellants in the remainder after the death of Esther C. French, and reformed the descriptions in the deeds as prayed, and found against appellants on their second paragraph of complaint.
Appellants’ counsel have devoted much attention to a
The conveyances from appellants to appellees .divested appellants of all the interest they had in the real estate in question, and the conclusion reached by the trial court was correct. Appellants’ counsel by their very able brief have raised other questions, but the conclusions we have reached make it unnecessary to pass upon the same. Judgment affirmed.
Note.—Reported in 108 N. E. 786. As to jurisdiction of equity to construe wills, see 129 Am. St. 78. See, also, under (1) 40 Cyc. 1580, 1409; (2) 40 Cyc. 1650; (3) 40 Cyc. 1768; 39 Cyc. 207; (4) 18 Cyc. 297; (5) 40 Cyc. 1768; (6) 40 Cyc. 1666; (7) 39 Cyc. 371.