36 Ind. App. 543 | Ind. Ct. App. | 1905
Appellant and the appellees Anna V. Durff, Margaret D. Conner and Ella C. Shrode were the plaintiffs below, and the other appellees were the defendants. The object of the action was to obtain partition of certain real estate in Eloyd county, Indiana. In addition the appellant sought to quiet the title to her interest in said real estate, which she alleged to be an undivided one-fifth interest in fee therein as against the appellees Theodore S. Day, Jeannette Preston Day, Allie I. Garrison, Ezekiel D. Garrison, Elizabeth A. Garrison, Ruth E. Garrison, Mary J. Garrison and Ella C. Shrode, trustee for Elizabeth R. Garrison. Plaintiffs below also sought to have certain mortgage and judgment liens, which were particularly described in the complaint, held by the appellees Jeannette Preston Day, ITenry E. Jewett and Anna Tompkins against the interest of appellee Theodore S. Day in said real estate, transferred to that part thereof that might be set off to him in severalty. Cross-complaints were filed by appellee Henry E. Jewett and Anna Tompkins upon the mortgages held by them on the interest of Theodore S. Day, in said real estate. There was no question of priority raised as to these several liens.
There was a trial by the court and a special finding of facts, with the court’s conclusions of law thereon. The finding and judgment was against the appellant but in favor of her coplaintiffs and appellees Theodore S. Day and Ella C. Shrode, trustee of Elizabeth R. Garrison. The court found and adjudged that appellees Anna V. Durff, Margaret D. Conner, Ella C. Shrode and Theodore S. Day each owned in fee simple an undivided one-fifth of the real estate involved, and that appellee Ella O. Shrode, trustee for Elizabeth R. Garrison, was entitled to take an undivided one-fifth in value of said real estate as
The question involved in this appeal arises under the will of Ezekiel R. .Day, who was the father of appellant and appellees Theodore S. Day, Anna V. Durff, Margaret D. Conner and Ella C. Shrode. Ezekiel R. Day died at Floyd county, Indiana, on March 14, 1900. He left surviving him his widow, Elizabeth Day, who was a childless third wife. The children above named were the issue of the first and second wives' of the testator. The widow, Elizabeth, died April 4, 1903. Said Ezekiel R. Day died the owner of numerous tracts of land in Floyd county, Indiana. By the first item of his will he directed the payment of all his just debts out of his personal estate. By the second item, subject to certain advancements, he willed one-third of his realty to his wife. By the third item he bequeathed to his wife certain of his personalty for life.
The fifth item of his will is as follows: “Subject to the advancements hereinbefore mentioned, I hereby will and direct that all of my property and estate, not hereinbefore disposed of by this will, be divided and paid as follows: To my daughter Anna V. Durff, one-fifth thereof, deducting therefrom the advancement hereinbefore mentioned. To my son Theodore S. Day one-fifth thereof, deducting the advancement above mentioned. To my daughter Margaret Conner one-fifth. To my daughter Ella C. one-fifth, deducting therefrom the advancement above mentioned. To my daughter Elizabeth Garrison the net interest, dividends and profits upon the remaining one-fifth of my said property and estate, to be paid over to her by my daughter Ella 0., who is hereby constituted her trustee for that purpose, and to hold during the life of said Elizabeth Garrison the undivided one-fifth of all my said property and estate; and I hereby give and devise said one-fifth to my said daughter Ella C., in trust, however, for the benefit of my said daughter Elizabeth, with full power and authority unto my said daughter Ella O. to sell, convey, manage and dispose of the same, and of each and every part thereof, as she thinks most advantageous, and to invest and reinvest the proceeds of any and all sales by her made, as often as may be necessary; it being my intention that such trustee, or her successor in trust, shall, after the payment of all taxes, legal assessments, repairs and the expenses 6f said trust, pay over to my said daughter Elizabeth, semiannually or oftener if convenient, all rents, interest, dividends and profits derived, received or arising from said property so devised in trust. At the death of my said daughter Elizabeth, I give, devise and bequeath all of said property so devised in trust to the child or children
Judgment affirmed.