Abernathy v. McCoy

• Decision Date: 23 December 1926
• Docket Number: Nos. 12223-12227.,s. 12223-12227.
• Citation: 91 Ind.App. 574,154 N.E. 682
• Parties: ABERNATHY v. McCOY et al., and four other cases.
• Court: Indiana Appellate Court

91 Ind.App. 574

154 N.E. 682

ABERNATHY

v.McCOY et al., and four other cases.

Nos. 12223-12227.

Appellate Court of Indiana, in Banc.

Dec. 23, 1926.

Appeal from Montgomery Circuit Court; Jere West, Judge.

Actions, consolidated for trial, by Isaac N. Abernathy, guardian of Matilda May Stevenson and others, minors, against Mary Esther McCoy, and husband, against William T. Morin and wife, against Fielden E. Morin and wife, against Martha M. McDill and another, and against the Tippecanoe Land Company, in which Gladys R. Davis was made a party plaintiff on the death of one of such minors. Judgment for defendants, and plaintiff appeals. Reversed with instruction.Joseph B. Ross, of La Fayette, for appellant.

Miller, Dailey & Thompson, of Indianapolis, and Clyde H. Jones and Stuart, Simms & Stuart, all of La Fayette, for appellees.

ENLOE, J.

One John Evans, a resident of Ohio, died testate in Ross county, Ohio, in 1842, the owner of several large tracts of land in Tippecanoe county, Ind. He executed his last will and testament on May 24, 1837, and a codicil thereto on September 25, 1838. After his death the said will, with the codicil thereto, was duly probated in the court of common pleas of said Ross county on January 11, 1842. Thereafter, by order of the Tippecanoe probate court, and upon due application in that behalf, a certified copy of said will was, on February 17, 1845, recorded in the record of wills of Tippecanoe county.

The said John Evans left surviving him, two daughters, Mary Ann G. Boggs and Minerva C. Evans, and also two grandsons, Edward O. Stevenson and Job E. Stevenson, children of a deceased daughter. The lands owned by said John Evans, in Indiana, at the time of his death, were disposed of under the tenth item of his will; said item, so far as the same is material to the consideration of this case, being as follows:

“Item Tenth. All the rest and residue of my lands and real estate wheresoever situated, and by whatsoever title held and to which I may have claim or title at the time of my death *** shall be divided into three equal shares or parts. *** And *** I hereby give and bequeath unto my daughter Mary Ann G. Boggs unto one-third part unto my daughter Minerva C. Evans and unto the remaining one-third part unto my Grandsons Edward O. and Job E. Stevenson as tenants in common for and during the period of their and each of their natu real lives and no longer. *** And I further declare it to be my will that upon the death of each of my said daughters and upon the death of each of my said Grandsons the title to that portion of my lands an s stocks in which each has enjoyed a life estate shall descend and pass absolutely unconditionally and in fee simple respectively to the child or children of each lawfully begotten of the body of each or to the child or children lawfully begotten of the body of such child or children. But in default of child or children lawfully begotten of the bodies of one or both of my said daughters or of one or both of my said Grandsons, the title to that part of my estate of which each or all have enjoyed a life estate and for which there is no child or grandchild to inherit shall neither descend nor pass according to any laws regulating descents; but shall remain subject to the following contingencies and to be disposed of in manner and form following, to-wit: Should either of my said Grandsons die without leaving heirs lawfully begotten of his body, the survivor and his heirs lawfully begotten of his body, shall inherit and possess the portion of the one so dying without such lawful heirs. But if both my said Grandsons should die without leaving heirs of their or either of their bodies, then the portion of my estate given to them as a life estate shall pass to and be equally divided between my said daughters Mary Ann G. Boggs and Minerva C. Evans, and their heirs lawfully begotten of their bodies, the same as though no devise had been made to my said grandsons and upon the same conditions of the devise already made to my said daughters, should either of my said daughters die without leaving heirs lawfully begotten of her body, her portion of my estate shall pass to and be inherited one-half thereof by my surviving daughter and the heirs lawfully begotten of her body, and the other half by my said grandsons and the heirs lawfully begotten of them or either of their bodies upon the same conditions of the devise already made. But should both of my said daughters die without leaving an heir or heirs lawfully begotten of their or either of their bodies then the one equal half of the portion of my estate that was held by her that last died at the period of her death shall pass to and be inherited by my said Grandsons, Edward O. and Job E. Stevenson or the survivors of them and the heirs lawfully begotten of their or either of their bodies upon the same conditions of the devise already made to them, and the remaining half thereof of the portion of my said daughter that last died shall pass to and be inherited by the children and legal heirs of my deceased Brothers Robert Evans and Daniel Evans in fee simple, and to be divided in equal shares between them in compliance with the laws of the State of Ohio and they, the said children and legal heirs aforesaid and each of them shall inherit their several portions of my said estate hereby given real and personal or mixed for themselves, their heirs and assigns forever. *** I hereby further declare it to be my will and intention that after the death of my said daughters and of my said two grandsons the part of my estate of which they have respectfully had the use of a part, shall descend to and be inherited in fee simple by the children and legal heirs of my two said deceased brothers Robert Evans and Daniel Evans to themselves, their heirs and assigns forever, to be divided in equal shares between them agreeable to the laws of descents in the State of Ohio.” (Our italics.)

The testator also directed the executors thereof, whom he named and who duly qualified and acted as executors of said will, to partition said lands among the said devisees, and this was done in December, 1843; the lands set off to Job E. and William O. Stevenson, 1,440 acres, being set off to them in common. Thereafter, but prior to 1857, the said Mary Ann G. Boggs died, and the lands which, by said executors, had been set off to her under the will of John Evans, were, by the judgment and decree of the Tippecanoe circuit court, in an action for partition, partitioned and set off to Minerva C. Evans, one-half part, to Job E. Stevenson, one-fourth part for life, and to Edward O. Stevenson, Jr., son of Edward O. Stevenson, one-fourth part in fee simple.

In 1858 Edward O. Stevenson, Jr., commenced a suit in the Tippecanoe circuit court, wherein he asked that the lands which had been set off to his father and to Job E. Stevenson, by the said executors, and also the lands which had been set off to himself and to Job E. Stevenson in the partition suit of 1857 (the Boggs land), should be partitioned between the said parties, the plaintiff and Job E. Stevenson. Under a decree of said court one-half of said lands were set apart to said plaintiff in fee simple, and one-half part was set off to Job E. Stevenson “for his sole use and benefit during the term of his natural life.”

Minerva C. Evans died in 1875, leaving no child or children surviving her, and under a decree in a partition suit there was set off to said Job E. Stevenson, “for and during his natural life,” the one-fourth part of the lands lately then owned by said Minerva C. Evans. This decree was framed according to the provisions of the will of said John Evans, which declared that such lands should be held “upon the same terms and conditions” as the lands directly devised to said party. Job E. Stevenson was in possession of and occupying all of said lands so set off to him, and in October, 1893, he, his wife, and one Eva C. Stevenson, an only daughter, then of full age, executed a deed, in form a deed of warranty, conveying a portion of said lands (920 acres) to one John K. McMillan. Again, and later in the same year, the same parties executed another and similar deed to said McMillan, conveying to him additional lands, of those so held by said Job E. Stevenson as aforesaid.

Shortly after the above-mentioned deeds were executed, the wife of Job E. Stevenson died, and he remained a widower until September 22, 1903, when he was married to one Gladys Warnock. After this marriage he and his said wife lived together until in July, 1922, when Job Stevenson died, leaving surviving him Eva C. Stevenson aforenamed, and then the wife of one George W. Cable, and also three daughters, viz. Matilda May Stevenson, Minerva Colgate Stevenson, and Evelynn Stevenson, children born to himself and Gladys Warnock Stevenson, and all of them under legal age.

After the death of Job E. Stevenson, the appellant, Isaac N. Abernathy, was appointed as guardian of his said three minor daughters, and shortly thereafter, as such, commenced suits to recover for said wards a portion of said lands. Six actions were commenced in the Tippecanoe circuit court. Five of these-one against Mary E. McCoy and Moraine McCoy, her husband, No. 12223 on the docket of this court; another against William T. Morin and Jewel Morin, his wife, No. 12224; another against Fielden E. Morin and Alma Morin, his wife, No. 12225; another against Martha M. McDill and Mabel McDill Andrews, No. 12226; and the other against the Tippecanoe Land Company, No. 12227-were taken by change of venue to Montgomery. These said cases were, for the purpose of trial, consolidated in the Montgomery circuit court.

Pending the trial of said causes, said Minerva C. Stevenson, daughter of said Job E. Stevenson, died, and her mother, Gladys R. Davis, former widow of Job E. Stevenson, was then made a party, as being one of the heirs of her said daughter. From an adverse...