Anderson v. Crist

• Decision Date: 17 January 1888
• Citation: 113 Ind. 65,15 N.E. 9
• Parties: Anderson et al. v. Crist.
• Court: Indiana Supreme Court

113 Ind. 65

15 N.E. 9

Anderson et al.

v.Crist.

Supreme Court of Indiana.

January 17, 1888.

Appeal from circuit court, Decatur county; S. A. Bonner, Judge.

Ewing & Ewing, for appellants. Moore & Marshall, for appellee.

Zollars, J.

Abraham Crist, appellee's husband, died in 1873, the owner of real estate, and left a will, one item of which is as follows: “ Second. To my wife, Catharine Crist, I give the use of all my real estate, being about two hundred and fifty acres, where I now reside, in Adams township, Decaturcounty, Indiana, until my youngest child arrives at twenty-one years of age, for the purpose of rearing and educating my children. And, when my youngest child arrives at age, then I desire that the said real estate shall pass to my said wife and my children, one-third to my wife, and the balance to my children or their descendants, as the law would cast it. And if my youngest child, Minnie, should die before she arrives at age, then I desire that said real estate shall pass to my wife and children, as aforesaid, when the next youngest child now living, to-wit, Ada Crist, shall arrive at twenty-one years of age.” Appellee accepted the provisions of the will, and has remained upon the land, supporting the family from the products thereof. The youngest child is not yet 21 years of age. In 1885, appellant Sarah Anderson recovered a judgment against appellee, and caused an execution to be issued, and placed in the hands of the sheriff, appellant Welsh. Under the direction of appellant Anderson, he is threatening to levy the execution upon one-third of the land, and to sell the rents and profits thereof, for a period not exceeding seven years, in satisfaction of the judgment. With the statement of the above facts, appellee's complaint against appellants closed with a prayer for a judgment enjoining them from selling said rents and profits. The court below overruled a demurrer to the complaint, and rendered judgment in accordance with the prayer thereof.

It is not necessary for us to determine just what appellee's rights in and to one-third of the land, aside from the rents and profits, is at this time, nor whether that interest, whatever it is, may be sold at this time upon an execution. Properly construed, the complaint presents but one question, and that is, what are her rights in and to the rents and profits? In other words, upon the facts stated in the complaint, does she, during the minority of the children, own the rents and profits in such a sense that they may be sold upon an execution in satisfaction of a personal judgment against her? It is alleged in the complaint, and admitted by the demurrer, that she has been, and now is, using those rents and profits in rearing and educating the children, some of whom are still minors.

The terms of the will cannot be construed as an indication merely of that which the testator thought would be a reasonable exercise of discretion on the part of appellee; leaving it, however, to her to exercise her own discretion. On the contrary, they show a purpose to govern her conduct, and fix the rights of the beneficiaries.

The will, we think, very clearly makes appellee a trustee as to the rents and profits of the land for the purposes stated. In construing wills, courts will consider the intention of the testator, as manifestly implied, and will carry that intention into effect in all proper cases by declaring the donee or first taker to be a trustee for those whom the testator intended to benefit. It is not necessary that technical language should be used, to create a trust; it is enough that the intention is apparent. In very many cases the courts have gone far beyond what is required here, in declaring the donee or first taker to be a trustee. We cite the following: Erickson v. Willard, 1 N. H. 217;Hunter v. Stembridge, 12 Ga. 192; Cockrill v. Armstrong, 31 Ark. 580; Bull v. Bull, 8 Conn. 47; Knox v. Knox, 59 Wis. 172, 18 N. W. Rep. 155; 1 Perry, Trusts, (3d Ed.) §§ 112, 117, and cases there cited.

Appellants' counsel contend that appellee should be held to be the absolute owner of the rents and profits of the land, free from any trust in favor of the children; and base that contention largely upon the fact that she is their mother, and, as such, under obligations to rear and educate them. It has been said in some of the cases, and by some of the text writers, that there should be a distinction between cases where bequests are made to parents for the benefit of their children, and cases where bequests for such purposes are made to strangers. There may be ground for such a distinction, based upon the presumption that, where bequests are made to strangers,...