Apple v. Apple

• Decision Date: 14 October 1971
• Docket Number: No. 1270A259,No. 2,1270A259,2
• Citation: 274 N.E.2d 402,27 Ind.Dec. 182,149 Ind.App. 529
• Parties: Philip F. APPLE and Nancy A. Oakes, Appellants, v. Floyd L. APPLE et al., Appellees
• Court: Indiana Appellate Court

Page 402

274 N.E.2d 402

149 Ind.App. 529

Philip F. APPLE and Nancy A. Oakes, Appellants, v. Floyd L. APPLE et al., Appellees.

No. 1270A259.

Appellate Court of Indiana, Division No. 2.

Oct. 14, 1971.

Rehearing Denied Nov. 17, 1971.

Marvin E. Clanin, Anderson, Thaddeus R. Spurgeon, Oaklandon, for appellants.

William D. Hall, DeWester, Raftery, Andrews & Hall, Indianapolis, for appellees.

SHARP, Judge.

This is an appeal from a judgment of the Hancock Circuit Court granting summary judgment for the defendant-appellees, and thereby quieting title to the contested tract of land in the appellees.

The quiet title suit was a collateral attack by appellants upon an earlier judgment of the same Court entered in 1928, whereby the Court approved a compromise agreement and upheld the validity of the Last Will of Mary Edna Addison, deceased grandmother of Mary Rose Apple (Simmons). Contemporaneously with entry of judgment upholding the validity of the Will, the trustee and executor jointly executed a deed purporting to convey the fee simple title to said land to the grantee therein, Mary Rose Apple (Simmons).

Item Eight of the Last Will of Mary Edna Addison contains the provision for creating the trust and the pertinent parts thereof are as follows:

'All the rest, residue and remainder of my estate, real, personal and mixed, wheresoever situate, of which I may die seized or possessed, or to which I may be entitled at the time of my deceased, I will, devise and bequeath to Charles H. Cook, of Greenfield, Indiana, absolutely and in fee simple, but nevertheless strictly in trust for the uses and purposes following:

Said trustee shall, at all times, have full, complete and absolute possession and control of all the said trust property, and all of the income thereof, and shall have full and complete power and authority to manage, use, control and possess said trust property in such manner as shall be to the best interest and advantage of this trust, and shall promote the purposes hereof, and produce an income, and for such purpose said trustee shall have full and complete power and authority to sell, to lease, to make investments and re-investments of said trust property, and to allow, pay, compromise, compound, enforce, waive, accept, extend the time of payment, or refer to arbitration any debts or demands whatsoever, which may be owing from, or to, the trust at any time, and to do and perform all other things, and to take such other action reasonably necessary to fully and completely execute this trust, except said trustee shall have no power or authority to sell, encumber, or convey any real estate of this trust otherwise than as hereinafter provided.

The income of this trust shall be used and applied by said trustee for the purpose of keeping the trust property in good condition and repair, and to properly preserve the same, to pay the taxes and assessments legally made, assessed and levied against the trust property, and to pay and satisfy all necessary costs and expenses of this trust. Said trustee shall pay the net income of this trust annually to my granddaughter, Mary Rose Simmons, as long as she lives, if she survives me, and said trustee may, in his discretion and judgment, pay said income to my said granddaughter, Mary Rose Simmons, at least monthly.

In the event my granddaughter, Mary Rose Simmons, should survive me, said trustee shall permit her to have the use, control and possession of my real estate described in ITEM FIFTH of this, my last will, from the decease of my husband, Joseph N. Addison, if he survives me, and from my decease if he does not survive me and until she becomes twenty-five years of age, or until her death prior to that age, whenver, during said period, she desires the use, possession and control of said real estate for the purpose of residing and making her home thereon, and provided she does do so, and while so residing and making her home on said real estate, as aforesaid, she shall be entitled to the rents, issues and profits thereof, and she shall pay all taxes, charges and assessments lawfully made and levied against said real estate, and shall keep said real estate and the improvements thereon in good condition and repair.

In the event my said granddaughter, Mary Rose Simmons, should survive me, and become twenty-five years of age, then at that time, said trustee shall convey to her all of the real estate of this trust for the period of her life, and this trust shall in all other respects continue as herein provided.

In the event my said granddaughter, Mary Rose Simmons, should survive me, and then become deceased, leaving a descendant or descendants, surviving her, then at that time this trust shall end, and said trustee shall convey, assign, transfer and deliver all the trust property to the said descendant or descendants, of my said granddaughter living at the time of her said decease, absolutely, forever and in fee simple, and per stirpes.'

As indicated by the above provision, a trust was created whereby the decedent's granddaughter, Mary Rose Apple (Simmons), upon reaching the age of twenty-five, was to receive a life estate in all the realty, and upon her demise, the trust was to terminate and the trustee was to convey the fee simple title to the trust property to the descendants of the deceased granddaughter.

Subsequent to the will being admitted to probate, the granddaughter by her next friend, filed a suit in 1928 to set aside the probate and contest the will on the alleged grounds of unsoundness of mind and undue execution. Both the executor and trustee were named as party defendants. Before said proceeding came to trial, all parties thereto reached a compromise agreement for the purpose of settling the litigation and upholding the validity of the will. Contemporaneously with payment of the settlement, made in accordance with the agreement, judgment was rendered in the will contest proceeding upholding the validity of the will and the trust created thereby. The judgment, in so far as applicable, reads as follows:

'And now the court having seen and examined said petition, and being otherwise duly advised in the premises, finds the matters and things stated and set forth in said petition to be true and correct, and that it is to the best interest and advantage of said estate, and of all persons and parties interested therein, to settle and compromise, as stated and set forth in said petition, the certain litigation and cause of action described in said petition, numbered 16750 and now pending trial and final judgment in the Hancock Circuit Court, wherein said Mary Rose Simmons by Fanny F. Spurry her next friend, is plaintiff, and said executor and others are defendants, in which cause of action the said plaintiff seeks and attempts to set aside the probate of said will, and to contest said will on the alleged grounds of unsoundness of mind, and undue execution; and that the prayer of said petition should be granted, and said compromise agreement approved and confirmed and adopted as the judgment of this court.

NOW THEREFORE, it is considered, ordered, adjudged and decreed by the court that said compromise agreement be and the same is now approved and confirmed, and adopted and made the judgment of this court and that said cause of action shall be compromised and settled as stated and set forth in said compromise agreement.

And it is further considered, adjudged and ordered by the court that said executor shall pay as a part of the costs and expenses of said estate of said testatrix, the costs of said cause of action, including the final judgment therein, which payment shall also be made from the said residuary estate of said testatrix.

And it is further considered, adjudged and ordered by the court that said executor join with J. Ward Fletcher as trustee of the trust created by said last will of said testatrix in the execution of a deed conveying the above described real estate to said Mary Rose Simmons.

And it is further considered, adjudged and decreed by the court that the payment of said money, and the conveyance of said real estate and delivery of said specific articles of personal property as hereinbefore proveded, shall vest the absolute title thereto in said Mary Rose Simmons, and shall release and discharge said executor of all liability therefor, and he shall be, and he is hereby, given full credit therefor as against his charges and responsibility as such executor.

All of which, is finally ordered, adjudged and decreed by the court.'

The appellants herein are the children of Mary Rose Apple (Simmons), who, as her descendants would have acquired title to the land except for the compromise agreement. None of the appellants were alive at the time of the contested proceedings as their mother was then only twelve years of age. The question now before us to decide is whether the appellants are estopped from collaterally attacking the compromise agreement and the final judgment rendered thereon in 1928.

Appellants argue that since the trustee was only authorized to convey a life estate to Mary Rose Apple (Simmons), his conveyance of the fee simple title to a small fraction of the trust corpus was in contravention of his trust and absolutely void. Therefore, the court allegedly did not have jurisdiction to order or approve the same and its judgment is facially invalid. Furthermore, since the trustee breached the terms of his trust, he acted solely as an individual and the beneficiaries are not bound by his alleged representation of their interests.

Primary reliance, in the above argument, is placed upon I.C.1971, 30--1--9--5, Ind.Ann.Stat. wherein the validity of the trust itself is reads as follows:

'Every sale, conveyance or other act of a trustee in contravention of a trust shall be void.'

Appellants recognize that the trustee had certain expressed power in relation to the compromise of claims and demands, and they further concede that he had...