79 Ind. App. 683 | Ind. Ct. App. | 1920
Appellants, the heirs and next of kin of John Herron, deceased, instituted this action against appellee, administrator de bonis non with the will annexed of the estate of the decedent, to recover possession of the unsold real estate of which the decedent died seized. The issues were formed by a complaint in ejectment in two paragraphs, the first in the usual form, and as required by the statute; the second setting forth in detail the facts as to the decedent’s estate, heirs, will, etc. To the former, appellee filed an answer in two paragraphs, and to the latter a demurrer which was sustained. A separate and several demurrer filed by appellants to each paragraph of the answer was overruled as to the first paragraph, and sustained as to the second. Appellants, having elected to abide by the sufficiency of their respective pleadings, refused to plead further, and judgment was rendered against them.
Errors assigned and relied upon for reversal are: (1) Sustaining appellee’s demurrer to the second paragraph of complaint; and (2) overruling appellants’ joint and several demurrer to the first paragraph of appellee’s answer.
It appears from the facts pleaded in the second paragraph of complaint and in the first paragraph of answer, which pleadings are in substance the same, that John Herron departed this life testate, April 30, 1895, seized in fee simple of certain described real estate in the city of Indianapolis of the value of $122,350, and possessed of personal property of the value of $105,-
“Item 5. For the payment of the foregoing bequests and legacies, debts and expenses of administration, and the residuary bequest in the item next following, I direct that my executor, by collections and sales, shall reduce to money my entire estate, real and personal, wherever situated, arid for such purpose, I do direct and empower my executor, to sell all said personal estate at public or private vendue, at such time and upon such terms and in such manner as to him shall seem meet without notice or appraisement; and for like purpose I do direct, authorize and empower my said executor, to grant, bargain, sell and convey all of my real estate wherever situated, in such parcels or tracts for such price or prices, upon such terms of cash or credit, and upon such securities, to such person or persons, at such time and within such period as he may deem to the best interests.of my estate ; /said sales, however, not to be either unreasonably hurried or delayed. Said sales, or any of them, may be without order of court, at public or*687 private vendue, and when at private vendue without notice, and when at public vendue upon such notice as my executor shall determine. My executor shall have power to make all necessary and proper conveyances, and deeds executed by him shall convey title as fully as though made by me in my lifetime.
“Item 6. After the payment of the special legacies, debts and expenses of administration, as provided in the previous items, I do give and bequeath all the residue and remainder of my estate, as the same shall be reduced to money, to the 'Art Association of Indianapolis, Ind.,’ a corporation incorporated under the laws of the State of Indiana, on or about April 5, 1892, to be to said corporation absolutely and forever. Provided, however, and this bequest is upon the condition following: That the art gallery and art school of said association when established and maintained, shall each be designated and named by such name or names as will include the name of the testator as a part thereof, and the use of such name or names shall be perpetual, or so long as said art gallery and art school are severally maintained. The association may, however, if it prefer, adopt one name to include both gallery and school. My executor may pay to said association under this bequest the money realized by him from time to time, whenever he has received what is deemed by him proper evidence, that said association has adopted the name or names for the gallery or school as herein set forth. If said association shall not see fit to comply with the foregoing condition, or if, for any' cause or reason, this bequest should fail or became invalid, then in either event I direct that my executor shall distribute the residue and remainder of my estate in this item sought to be bequeathed, to such religious and charitable societies, churches, organizations and corporations, located in the city of Indianapolis, Indiana, as he may select, and in such portions as he may determine, including or not, as he deems meet, those named in item third of this will.”
Ambrose P. Stanton, who was named in the will as executor, qualified when the will was probated, and
Appellants proceed upon the theory that the will of John Herron is valid except as to item six thereof; but that the unsold real estate, the possession of which they seek to recover, being embraced within the devise set forth in that item, had vested in appellants at the death of the testator for the reason that the devise was void, as being in contravention of the statutes of this state (§§3998, 9723 Burns 1914, §§2962, 6027 R. S. 1881), which statutes prohibit the suspension of the absolute power of alienation of real estate and of the absolute ownership of personal property for a longer period than during the existence of a life, or lives, in being at the time of the death of the testator. If item six is void as contended by appellants this cause must be reversed, otherwise the judgment of the trial court must in all things be sustained.
Although the general intention of the testator as gathered from his will is quite clear, as we have above stated, his intention in reference to the conditions, and the de
In construing a will, or any item or provision thereof, the primary object is to ascertain the intention of the testator. Stieglitz v. Migatz (1914), 182 Ind. 549, 105 N. E. 465. The intention of the testator must be ascertained from the language used in
Before we examine the provisions of the will which are in controversy, it is well to note that the bequest made by item six thereof is charitable in its nature. Courts have universally held that bequests for the purposes of education are, in law, treated as charitable, and that the particular character of the education sought to be fostered does not in any way affect the validity of such bequests. 5 R. C. L. 330, and authorities there cited. It has also been held, and is the law, that a bequest of money as a fund for an art institute' is a bequest to charity within the meaning of the authorities. Almy v. Jones (1891), 17 R. I. 265, 21 Atl. 616, 12 L. R. A. 414; Mason v. Bloomington Library Assn. (1908), 237 Ill. 442, 86 N. E. 1044, 15 Ann. Cas. 603. It is also well established, that legacies and devises to the uses of charity are entitled to peculiar favor,
Keeping in mind the nature of the gift and the above rules of construction, we shall proceed to examine the provisions of the will in controversy. The first sentence of item six is as follows: “After the payment of the special legacies, debts and expenses of administration, as provided in the previous items, I do give and bequeath all the residue and remainder of my estate, as the same shall be reduced to money, to the ‘Art Association of Indianapolis, Ind.,’ a corporation incorporated under the laws of the State of Indiana, on or about April 5,1892, to be to said corporation absolutely and forever.”
If the testator had stopped with this sentence, there would be no room for controversy. The language clearly expresses a present bequest, and forces the mind to but one conclusion, that is, that the testator intended to, and did, vest eo instanti the residue of his estate in the Art Association of Indianapolis, subject to the power of the executor to convert it into cash, as provided by item five of the will. The words, “as the same shall be reduced to money,” are consistent with the provision to reduce the property to cash. These words can have no significance other than to fix a time when the art association should come into enjoyment of the money. By the language used in this first sentence of item six, the vesting is so clear and unequivocal that any postponement of the vesting cannot arise from mere inference or construction. Such postponement can only arise from language used which clearly and definitely destroys the vested estate — language which will force the mind to such conclusion. What language used by the testator so destroys the present vesting by the
A correct; interpretation of the proviso of item six will require a careful examination of the various conditions therein stated. In the first sentence of the proviso we find a condition “that the art gallery and art school * * * when established and maintained shall each be designated and named by such name or names as will include the name of the testator.” The word “when” denotes time, and the expression “when established” fixes the time as after establishment. The expression “when maintained” carries with it the idea of continuing the particular name or names after they are established. Clearly this condition is not precedent to the vesting of the estate.
The next condition stated in the proviso is' that “the use of such name or names shall be perpetual, or so long as said gallery and school are severally maintained.” This is not a condition precedent. The word “perpetual” means for unlimited time in the future; and to say that the estate could not vest in the art association because of this clause is to court an absurdity. According to this view there could be no vesting at all, for the reason that the condition would be continually in the process of performance, but would never be fully performed so as to vest the estate.
The next clause of the proviso of item six of the will
Following these conditions in item six, the testator says: “If said association shall not see fit to comply with the foregoing conditions, or if for any cause or reason this bequest should fail or become invalid” that his executor shall distribute the residue of his estate to such charities and churches of the city of Indianapolis as he may select.
Now if we consider item six as an entirety, that is if we consider the present bequest stated in the first clause in connection with the conditions which follow, and in connection with the final statement of the testator as to the disposition of the residue of the estate if the condi
We therefore hold that by item six of his will John Herron intended to, and did, at the time of his death vest the residue of his estate in the Art Association of Indianapolis; and that the testator intended that the residue should vest subject to be divested if the association failed to adopt and continue to use his name in connection with the art gallery and art school when the same were established, and during the time they were being maintained.
It is contended by appellants, however, that even if item six must be construed so as to vest the residue of testator’s estate in the art association at the testator’s death, nevertheless, by reason of the provision in such item for the divesting of the estate and for the limitation over, the power of aliena
We therefore hold that appellee’s demurrer to the second paragraph of complaint was properly sustained; and that appellee’s second paragraph of answer sets forth a good defense to appellants’ first paragraph of complaint, and that the demurrer thereto was properly overruled.
Judgment affirmed.