181 Ind. 108 | Ind. | 1914
This was an action by appellee as administrator de bonis non with the will annexed, of Jesse Shriver, deceased, against appellants as children, grandchildren, and a guardian of grandchildren of said Shriver, to procure a construction of the will. The transcript was filed in the Appellate Court, December 22, 1910. On the passage of the act of March 10, 1913 (Acts 1913 p. 454), the Appellate Court on March 20, 1913, transferred the cause to this court, and the clerk on his own motion, after the decision involving the act of 1913 in Curless v. Watson (1913), 180 Ind. 86, 102 N. E. 497, retransferred the cause to the Appellate Court, and that court on October 29, 1913, properly transferred the cause to this court where the jurisdiction is, under §1392 Burns 1908, Acts 1907 p. 237.
The error assigned and presented is in the ruling on the complaint, the pertinent allegations of which are, that on the 21st day of November, 1908, appellee filed his current report, setting forth the state of his account as administrator to that date, and asked therein a construction of the will of the deceased, Jesse Shriver, so as to determine the proper and legal distributees of the will, to enable him to make a final distribution of the balance of the personal assets of the estate, which report was filed in the estate, assuming that the jurisdiction to construe the will properly belonged to the probate side of the court; an order of the court on the probate side, was made, directing that service be had upon the children and grandchildren of the deceased, to the end that the will might be construed, to determine to whom the personal assets of the estate should be distributed. “That service was had upon some of the defendants hereinabove named, but that other of the defendants have not yet been served, and the matter coming up for hearing on the 22nd day of April, 1909, it was deemed best that the action should be in the character of an adversary proceeding, and service had upon all of the defendants hereinabove named, and on motion of the plaintiff in this
The third, fourth and fifth items make the same provisions as to specifically described tracts of land in favor of his sons Elias, James and David, as in ease of Oliver. “6th. I give and bequeath to my wife Mary O. Shriver, my brick residence in Akron, Fulton County, Indiana, and the land adjacent thereto, (particularly described and other particularly described lands) so long as she shall live and remain my widow. And in addition thereto I devise to my said wife of the personal property as follows: $500 in money to be paid to her by my said trustee, and the interest on $2,000 to be held by said trustee, and the interest thereon to be paid "to her annually or as collected. Also I give and bequeath to her all the household and kitchen furniture. 7th. I further direct that my said trustee or his successor have and hold for the benefit of my grandchildren, all property remaining, and not herein specifically bequeathed, in trust for said grandchildren, until the youngest of my said grandchildren arrives at the age of 21 years, at which time the same is to become the property of said grandchildren, they to share equally therein.
That as a part of the settlement herein, it is agreed and the court therefore finds, that a son of the decedent, Franklin P. Shriver, ought to have, and by agreement of parties hereto is to have, the use and benefit of the following described land, (particularly describing 100 acres) under the same conditions, and subject to the same restrictions as provided for his brothers in the will herein established, that is to say: (then follow the same provisions as in case of the other four sons, but how, or why Franklin became entitled to it does not appear, as no bequest or devise is made to him). It is now therefore ordered, decreed and adjudged by the court
The complaint further alleges: “That it is provided in said will that the grandchildren of the testator, children of his sons Oliver, Elias and James, should not receive the bequests provided for them in said will until the youngest child of each should become 21 years of age. The petitioner further avers that on March 12, 1902, Mary C. Shriver, widow of the deceased, filed with the clerk of this court her renunciation under said will and her declaration of intention to take under the law, and that she did thereby renounce the provisions made for her in said will of the deceased, and did take under the law. On these facts, and on the questions presented herein, and the claims and demands made by the respective interests of the defendants herein, plaintiff: requests of the court a construction of the will and of said decree of the court therewith, and for all other proper relief. ’’
There was a demurrer to the first, second, third, fourth, fifth, sixth and seventh items of the alleged will, “as set out in the complaint” by Elias, on the ground that neither item states facts sufficient to constitute a cause of action against him. He also demurred to each paragraph of the complaint on the same grounds. David, Franklin and Oliver, the other sons, and Ruth Clayton, a daughter, demurred separately on the same grounds, which demurrers were severally overruled and separate exceptions reserved, and they with Elias answered by general denial. The court on trial adjudged that the residue of the estate in the hands of the administrator should be paid to the clerk of the court
Under the seventh item, if it can be said that there is provision for accumulation of personal property by force of law, the trustee in any event could take the residuary estate in the personal property in the hands of the administrator, only during the minority of that person who might be the beneficiary, but it cannot be tied up until the youngest beneficiary of a class arrives at his or her majority. §9724 Burns 1908, §6058 R. S. 1881. That, however, is not a matter in which appellants are interested, unless the instrument is invalid as an entirety or unless there were no grandchildren, child of a particular appellant in being, at the time of the death of the testator, because there is no attempt to provide an accumulation under §9724,
If it be urged that the bequest under the first and seventh items as to personal property, is to grandchildren as a class, then it is immaterial whether they individually were minors or of full age; if the latter, they would take at once, for we have seen that the trust cannot run beyond the majority of any beneficiary of the class, hence the provision that it shall run until the majority of the youngest of the class is void, and appellants as parents of those who make up the class are interested in that question, as possible inheritors from their children. Again, as the trust as directed must terminate as to each beneficiary on his arriving at majority, that provision is as to such person void, as it is also to those who may have been 21 years of age when the
Supposing all the facts to be before the court, several queries arise as to the personal estate. (1) If one of the sons had no child living at the date of the death of the testator, does the son take a portion of the personal estate, or does it go to the grandchildren if there were such in being at the death of the testator, and if so, does it go per stirpes or per capita? (2) Supposing grandchildren in being at the time of the death of the testator, do they alone take to the exclusion of the after-born grandchildren? These queries, and perhaps others, thrust themselves into the case, but we do not deem it advisable, in the absence of evidence disclosing’the situation, to attempt to answer them.
The judgment is reversed, with instructions to the court below to sustain the demurrers to the complaint and for further proceedings not inconsistent with this opinion.
Note. — Reported in 103 N. E. 945. See, also, under (2) 31 Cyc. 349; (4) 40 Cyc. 1931; (5) 30 Cyc. 1519; (6) 30 Cyc. 1497; (8) 40 Cyc. 1424. As to rule against perpetuities, see 90 Am. Dec. 101; 49 Am. St. 117; 64 Ann. St. 634. As to suit in equity to construe will, see 129 Am. St. 78.