Quilliam v. Union Trust Co. of Indianapolis

• Decision Date: 16 January 1924
• Docket Number: No. 24551.,24551.
• Parties: QUILLIAM et al. v. UNION TRUST CO. OF INDIANAPOLIS et al.
• Court: Indiana Supreme Court

194 Ind. 521

142 N.E. 214

QUILLIAM et al.

v.UNION TRUST CO. OF INDIANAPOLIS et al.

No. 24551.

Supreme Court of Indiana.

Jan. 16, 1924.

Appeal from Circuit Court, Marion County.

Suit by Elsie Delzell Quilliam and others against the Union Trust Company of Indianapolis and others. Judgment for defendants and plaintiffs appeal. Transferred from Appellate Court under section 1394, cl. 2, Burns' Ann. St. 1914. Affirmed.

Superseding former opinion, 131 N. E. 428, and rehearing, 132 N. E. 614.

Geo. W. Galvin, of Indianapolis, for appellants.

Geo. Young, Charles Remster, Henry H. Hornbrook, Albert P. Smith, Paul Y. Davis, and Kurt F. Pantzer, all of Indianapolis, for appellees.

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, Ind., 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 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.

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 lifetime 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 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 storeroom 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 receipts of the largest practical amount of rents, I also direct she shall keep all the buildings insured and in good repair.

Item 5: I will and direct in reference to a certain lot owned by me in the town of Vineville, Bibb county, Georgia, situated in the Forsyth road, conveyed to me February 21st, 18-, by the executor of the estate of Peter Solomen, to wit, that said lot descend to my daughter, Anna D. Hughes, as hereinafter provided in item number six (6) of this my will, with the further proviso, that should my daughter Anna D. Hughes die before her husband Daniel G. Hughes, and without a surviving child or children born to her, then the said Daniel G. Hughes shall have the right to use and occupy said premises for one year after the death of my said daughter free of rent, but should she have a child or children surviving her, then the said Hughes shall have the right to use and occupy said premises free of rent until the youngest shall have become twenty-one years of age and until the last survivor of said child shall arrive at the age of twenty-one years, but should children all die before arriving at the age of twenty-one years, then the said Hughes shall have the right to use the said premises for one year after the death of said last surviving child, such use to include use and enjoyment of lot and improvements.

Item 6: Subject to the foregoing provisions and conditions I devise and bequeath to my beloved daughter, Anna D. Hughes, all my real and personal estate forever, provided, however, that if my said daughter should die without issue, then it is my will that the property she may have derived from my estate at the time of her death shall have descended to my nephews and nieces from my own blood, and the income and provisions derived therefrom divided equally among them and their descendants for the period of fifty years after the date of the probate of my will, and at the expiration of fifty years, all of said property shall be sold and the proceeds divided equally among my nephews and nieces of my own blood and their descendants shall share and share alike.

Item 7: Should my daughter, Anna D. Hughes, leave a child or children, the issue of her body, surviving her, then it is my will that all of the real and personal estate by her owned, derived from my estate, shall descend equally to her child or the survivors of them, being my grandchildren and such grandchildren or grandchild, shall not have the power or right to sell, incumber or convey the same, but the same shall descend in equal proportion to my great-grandchildren if any there be, or the survivors of them, and should my grandchildren die without children, heirs of their bodies, then it is my will that the real estate derived from my estate shall descend to the descendants of my nephews and nieces of my own blood or the survivors of them.

Item 8: It is my will more fully expressed, that neither my daughter nor any of her children or grandchildren shall ever sell, convey or in any way incumber the real estate herein derived from my estate situated in Leavenworth, Kansas, Vineville, Georgia, and Marion county, Indiana, except as above accepted, nor anticipate the rental thereof for more than one year in advance until at the expiration of the period of fifty years after my death, and then said property shall be sold and the proceeds thereof divided among those entitled to it as above provided.

Item 9: It is my will that my daughter, Anna D. Hughes, subject to the specifications and bequests herein mentioned, during her lifetime, shall have the sole and exclusive possession and control of my real and personal estate, and shall receive and control all incomes and proceeds derived therefrom, to be by her kept and retained, for her own use and benefit, in her own discretion, without accounting to...