72 Ind. App. 661 | Ind. Ct. App. | 1920
—-This action by appellees against appellants was for the partition of, and to qniet title
There was a special appearance to the amended complaint, and a plea in abatement filed by appellant Alvis F. Hancock, as trustee, also a special appearance by the other appellants, including Alvis F. Hancock personally, and a like plea in abatement filed by them. Such pleas in abatement were amended and a demurrer for want of' facts was filed to each of the same as amended, which said demurrer was sustained. Appellants then answered the amended complaint by a general denial. There, was a trial and a finding of the court in favor of the appellees that they were the owners of said real estate and for partition between them, and a finding that the trustee and administrator had no interest in the real estate, except such right as might arise to sell the same to pay debts of the estate of said Martha J. Maynard, deceased, or of Jacob Maynard, deceased, in case such necessity should arise. There was a motion for a new trial, which was overruled,
■ The amended pleas in abatement aver in substance as follows: On April 30, 1913, and for a long time prior thereto and continuously thereafter up to and including August 6, 1913, Martha J. Maynard was the owner in fee simple and in possession of the real estate involved, and that she was the owner and in possession thereof until the date of her death. On April 30, 1913, she executed her last will and testament, which was made a part of the complaint, by the terms of which, after providing for the payment of her just debts, she devised by item 2 the fee simple,
Said testatrix and her husband, Jacob Maynard, were for many years residents of Madison county, Indiana, and each died therein. Upon the death of said testatrix, appellant Alvis F. Hancock, named as trustee in said will and to whom the decedent’s property, including the real estate involved, had been devised and bequeathed, took possession of such property under the terms of said will and continued to •hold the same and still holds it. During the lifetime •of said Jacob Maynard, who died January 14, 1917, the said trustee carried out all the terms of said will as to the support and care to be given to said Jacob Maynard and conferred with him and acted with him in the management of said trust, and said Jacob Maynard did not at any time demand or receive possession of said real estate, or the conveyance thereof to himself or any other person, and did not make any will
does not defeat or affect the rights of the heirs as tenants in common to maintain partition at any time before such condition arises, and if in this case the real estate involved may become liable to sale or rent to make the assets for the payment of debts, either of Martha J. Maynard or Jacob Maynard, such fact does not affect the rights of the heirs to partition, of course, subject to the right of sale for the payment of debts as aforesaid. Weakley v. Conradt (1877), 56 Ind. 430; Douthitt v. Smith, Admr. (1880), 69 Ind. 463; §1243 Burns 1914, Acts 1897 p. 125; Clayton, Admr., v. Blough (1884), 93 Ind. 85; Green v. Brown (1896), 146 Ind. 1, 44 N. E. 805; Tippecanoe Loan, etc., Co. v. Carr (1907), 40 Ind. App. 125, 78 N. E. 1043; Hall v. Gabbert (1904), 213 Ill. 208, 72 N. E. 806; O’Keefe v. Behrens (1906), 73 Kan. 469, 85 Pac. 555, 8 L. R. A. (N. S.) 354, 9 Ann. Cas. 867; O’Brien v. Mahoney (1901), 179 Mass. 200, 60 N. E. 493, 88 Am. St. 371; Garrett v. Colvin (1899), 77 Miss. 408, 26 South. 963; O’Brien v. Ash (1902), 169 Mo. 283, 69 S. W. 8; In re Reifsnyder’s Estate (1906), 214 Pa. 637, 63 Atl. 1075; Hinman v. Hinman (1905), 126 Wis. 191, 105 N. W. 788. There was no error in sustaining the demurrer to the pleas in abatement.
It is next contended by the appellants that the court erred in overruling the motion for a new trial and, under this head, the errors properly presented are that the decision of the court is not sustained by sufficient evidence, and that the decision of the court is contrary to law. The evidence in this cause consisted of an agreed statement of facts which.was in substance the same as averred in the pleas in abate
In Boraston’s Case (1793), 2 Coke (Pt. 3) 16, the devise was to Thomas Embry and wife for eight years next after testator’s decease, after that time the remainder to the executors until such time as Hugh Boraston should accomplish the full age of twenty-one years, the mesne profits to be by execu
In Goodtitle v. Whitby (1757), 1 Burr 228, the testator had devised lands to H and B and the survivor in fee, in trust, today out the profits in the support of his nephews Thomas and John Hayward, and when, and as soon as, they should respectively attain their ages of twenty-one, then' to the use of said Thomas and John and other heirs equally. Thomas died under age and without issue; and in a controversy between the heir of the testator and John, who was the heir of his brother, Thomas, the court decided that this was an immediate gift to the two nephews, with the trust to be executed for their benefit during their minority, and that Thomas’ arrival at the age of twenty-one was not a precedent condition to the vesting of the estate in him.
Hunt v. Moore (1811), 14 East 601, was one of an immediate devise, in which it was decided that the devise to A in fee when he attains the age of twenty-one years, and if he dies before he attains the age of twenty-one, then over, does not make the devisee attaining age a condition precedent to the vesting of any interest in him, but it is a condition subsequent upon which the estate is to be divested.
lin Sill’s Appeal (1855), 1 Grant Cas. (Pa.) 235, the testatrix bequeathed all her property, real and per
In the case of Masterson v. Townshend (1890), 123 N. Y. 458, 25 N. E. 928, 10 L. R. A. 816, W died seized in fee of certain real estate, the will devising the same to his executor in trust to pay the specified annuity therefrom to his wife so long as she remained unmarried and the balance to his brother P. If the brother and executor deemed advisable, they were authorized to sell the real estate and make a deed therefor, and to pay the annuity specified to the wife; at the death of the wife or at her marriage the proceeds were directed to be paid to P. There was no sale of the real estate made and the widow remarried. Her heir at law, claiming an undivided interest, brought suit, and it was held that the provision in the will was in effect a devise by implication to P. on the death of the testator, and he became then vested with the title, subject only to the trust provisions made for the widow, and that the widow’s heirs at law had no interest in the premises.
In the case of Matter of Vowers (1889), 113 N. Y. 569, 21 N. E. 690, it was held that, although a gift by express terms is not made by a will, the legacy by implication may be upheld where the words of the will leave no doubt of the testator’s intent, and can have no other reasonable interpretation.
In the light of the foregoing authorities and principles of law, we undertake to determine the rights of the parties involved in this controversy. We regret to say that so much of appellee’s argument is used in vituperation and abuse of the appellant, trustee, that it loses its force and is not helpful, The question of law presented is a legitimate question that has not been easy to determine, and it was en
The testatrix, after making specific devises to her brothers and the descendants of her deceased sisters, by item 6 of her will devised the residue of her property, including the real estate involved in this action, to her brother, appellant Alvis F. Hancock, as trustee, to be held by him in trust for the uses and purposes, and subject to the conditions thereinafter set out. She then directed that in the management of the farm he should be directed by the husband, and that the husband should have the control and management thereof, should prescribe what stock should be sold and what should be purchased, and then further directed that the trust under the will, unless sooner terminated, should ucease on April 1, 1921, if her said husband be then living, at which time the trustee was directed to convey such real estate to her husband in fee simple. She further directed her trustee to convey such real estate to her husband at any time prior to April 1, 1921, upon his demand therefor. She then requested her husband to make final disposition of the farm by will, after her decease, so that, should he die while it was in the hands of the trustee, such disposition would have been provided for, and stated that it was her purpose that, should such land be conveyed to her husband as above provided, he should have the right to sell and dispose of the same as to him might seem best, and to make such use of the farm and the proceeds thereof as he might wish.
The judgment is affirmed.