168 Ind. 169 | Ind. | 1906
Lead Opinion
This suit was brought by appellant as administrator of the estate of Lucy Stimson, deceased, to obtain a construction of the will of Elorence B. Rountree, for an accounting by her executor, and to require payment of a legacy. Charles Rountree, in his proper person, and as executor, filed separate demurrers to the complaint, which were sustained, and, appellant electing to stand upon such complaint, judgment was rendered against him for costs.
It is alleged that the court erred in sustaining these demurrers to the complaint.
Elorence B. Rountree died February 12, 1902, and at the time of her death owned land of the value of $12^000, and personal property of the value of $100. Item one of her will bequeathed $500 out of her estate to Mary Stimson. Item two reads as follows:
“I give and devise to my niece, Lucy Stimson, the sum of $3,000 out of my estate; said sum to be held by my executor, hereinafter named, in trust for said Lucy Stimson, who. is an invalid, and likely to remain so during her life, and in consequence thereof likely to need portions of the principal of said sum from time to time, it being my desire that in case she needs any portion of said principal sum from time to time, it be furnished to her as the need therefor may arise. Said sum, or the portion thereof remaining, to be loaned by my said executor, with safe and sufficient security, and the income therefrom, as well as portions of the principal thereof, to be paid to my said niece as her comfort and welfare may require from time to time. It being my will, however, that said sum of $3,000 shall be the absolute property of my said niece, Lucy Stimson, the same being thus placed in trust for her*171 in order that it may thereby be the more certainly applied to her needs from time to time as above provided. In .case, however, she does not survive my husband, Charles Eountree, and my niece, Mary Stimson, her sister, named in item one of this will, then upon her (said Lucy’s) death said sum, or the portion thereof remaining, shall be divided equally between my said husband, Charles Eountree, and my said niece, Mary Stimson; and if at the time of the death of said Lucy my said husband, Charles Eountree, shall not then be living, in that case, the half of said sum he would have taken had he then been living shall go to my sister, Edna B. Stimson, and if neither my said. sister nor my said husband be living at the time of the death of said Lucy Stimson, then in that case said Mary Stimson shall take the whole of what is remaining of said sum mentioned in this item.”
Item three gives the residue of the property “not disposed of in items one and two” to Charles Eountree. Item four names Charles Eountree as executor. All the parties named in the will were living at the time of the death of the testatrix, but Lucy Stimson died April 5, 1903.
The precise question for decision is whether Lucy Stimson took such an estate under the will as upon her death passed to her personal representative.
Appellees’ insistence is that the will, properly construed, gives an equitable estate for life to Lucy Stimson, with such legal title in the executor as will enable him to carry out the trust, with remainder over to Charles Rountree and Mary Stimson.
•Appellant’s contention is that the will bestowed upon Lucy Stimson $3,000 absolutely, which upon her death passed to her personal representative.
It is the expressed intention of the testatrix that this bequest is to be the “absolute property”, of the beneficiary, and if we give effect to this expression in connection with the preceding provisions of the will we are led to the conclusion that the $3,000 legacy was given to Lucy Stimson absolutely. We accordingly so hold. Lumpkin v. Rodgers, supra; Cameron v. Parish (1900), 155 Ind. 329.
The judgment ■ is reversed, with directions to overrule appellees’ demurrers to the complaint, and for further proceedings not inconsistent with this opinion.
Rehearing
On Petition for Rehearing.
Appellees’ counsel have supported their petition for a rehearing with an able, earnest and forceful argument, and we have again considered the questions involved. It was the declared intention of the testatrix to vest in Lucy Stimson an absolute title to the $3,000. This purpose is expressed in clear and apt words of well-known and fixed signification. Having intentionally clothed the object of her bounty with a complete and absolute title, the testatrix could not preserve that dominant purpose and at the same time subjoin incompatible provisions. We are accordingly still of opinion that this will falls within the classification to which it was assigned in the original opinion, and that the provisions of the will attempting to dispose of so much of the bequest as may remain upon the death of the legatee must be held void for repugnancy.
The petition is overruled.