142 N.E. 214 (Ind. 1924), 24,551, Quilliam v. Union Trust Company of Indianapolis

Docket Nº:24,551
Citation:142 N.E. 214, 194 Ind. 521
Opinion Judge:Gause, J.
Party Name:Quilliam et al. v. Union Trust Company of Indianapolis et al
Attorney:George W. Galvin, for appellants. John M. Bailey, George H. Young, Charles Remster, Henry H. Hornbrook, Albert P. Smith and Paul Y. Davis, for appellees.
Case Date:January 16, 1924
Court:Supreme Court of Indiana
 
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Page 214

142 N.E. 214 (Ind. 1924)

194 Ind. 521

Quilliam et al.

v.

Union Trust Company of Indianapolis et al

No. 24,551

Supreme Court of Indiana

January 16, 1924

Rehearing Denied April 24, 1924.

From Marion Circuit Court (A30,061); Louis B. Ewbank, Judge.

Action by Essie Delzell Quilliam and others against the Union Trust Company of Indianapolis and others. From a judgment for defendants, the plaintiffs appealed to the Appellate Court. (Transferred to the Supreme Court under § 1394, cl. 2, Burns 1914.)

Affirmed.

George W. Galvin, for appellants.

John M. Bailey, George H. Young, Charles Remster, Henry H. Hornbrook, Albert P. Smith and Paul Y. Davis, for appellees.

OPINION

[194 Ind. 523] Gause, J.

This is an action instituted by the appellants, who are nephews and nieces and descendants of nephews and nieces of Samuel Delzell, deceased, in which appellants seek to quiet their title to certain real estate in Marion county, Indiana, which was owned by said deceased at his death, and to prevent the appellees from interfering with the appellants' rights to said real estate. The appellees are The Union Trust Company of Indianapolis, as executor under the will of Anna D. Hughes, deceased, and the same company as trustee of express trusts created by the will of said Anna D. Hughes. Said Anna D. Hughes was the daughter of said Samuel Delzell. The determination of this cause involves the construction of the will of said Samuel Delzell.

The appellants claim that by the terms of said will, under which they are asserting title, said daughter was given a determinable fee in such real estate, which vested in the nephews and nieces and the descendants of the nephews and nieces of Samuel Delzell upon the death of said daughter without leaving any issue surviving at her death.

The appellees contend, first, that on account of an attempt in said will to suspend the power of alienation of the property therein devised, and the particular wording of the will in that respect, the entire will is [194 Ind. 524] void, and said daughter, being the only heir, took the estate by inheritance; second, if it is not void, that, by the terms of said will, she took a fee-simple estate.

Page 215

The lower court held the complaint insufficient on the ground that by the will of said Samuel Delzell, a fee-simple estate was devised to the daughter, Anna D. Hughes.

The daughter survived her father, Samuel Delzell, and, before the bringing of this suit, she died without leaving issue surviving her.

The will of said Samuel Delzell was as follows:

"I, Samuel Delzell, of Indianapolis, Indiana, make and publish this my last Will and Testament, hereby revoking all former Wills by me made.

"ITEM 1st: I will and direct that all my just debts and funeral expenses be paid out of the first moneys received from my estate that come into the hands of my executrix. "ITEM 2: I will and direct that all of my improved real estate in Leavenworth, Kansas, and in Marion County, Indiana, including my farm in Washington township, and my land near Brightwood remain unsold during the lifetime of my daughter, Anna D. Hughes, and during the lifetime of her child or children, should any be born to her, and during the life time of her grandchild or children, or their heirs or descendants, until the expiration of a period of fifty years, after the date of the probate of my will, and at the expiration of said fifty years I will and direct that said property be sold and the proceeds divided among those who, by the terms of this will, will be entitled to it; and further that no rental for more than one year in advance shall be collected for any of said real estate and that any and all payments and receipts for rental for more than one year in advance shall be void. My purpose in prohibiting the sale of the above mentioned real estate for fifty years, is because I believe no better investment can be made, and that no better way could I provide for my beloved daughter, and protect her and her children and grandchildren from want. My unimproved [194 Ind. 525] real estate in Marion County, Indiana, may be sold by my executrix, and also so much of my land near Brightwood as may be needed for railroad switching purposes; and in the event of my daughter's death without heirs of her body born to her, then, in this event all of my real estate, improved or unimproved, lying south of the line of latitude of Maryland Street, Indianapolis, whether inside or outside of said city in Marion County, Indiana, may also be sold and the proceeds divided among those at that time entitled to it by the terms of this Will that is entitled to it at the time of such sale. "ITEM 3: It is my will that for the period of fifty years after the probate of my Will, the sum of fifteen dollars each and every year shall be paid to the managers of Crown Hill Cemetery, of Marion County, Indiana, to provide and pay for a flower bed and for sprinkling and for general care of my burial lot in said cemetery, and also ten dollars per year for the same purpose for the burial lot of my brother, Hugh Delzell, in said cemetery, said sum to be paid annually on the first day of April in each year for said period of fifty years, out of the rentals of my store room property, at number 37 East Washington street, Indianapolis, and the same shall be a lien and first charge on said real estate for said period of fifty years. "ITEM 4. It is my will that my executrix in a reasonable time, cause to be erected on my real estate at number 37 East Washington street, Indianapolis, a four or five story substantial brick building of modern architecture and construction, and whereas I now have on deposit in the Exchange Bank of Macon, Georgia, the sum of twenty-thousand ($ 20,000) Dollars, I will and direct that so much of this sum as shall be on deposit at the time of my death, shall be expended in the construction of said building, and that out of the rents and income of my estate after the specified payments above provided for, my executrix shall appropriate and apply such additional sum as may be necessary to carry out the interest of this item of my will, and in the erection of such building, having regard to prospective value and the...

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