Apple v. Methodist Hospital of Ind., Inc.

• Decision Date: 06 May 1965
• Docket Number: No. 19874,No. 2,19874,2
• Citation: 138 Ind.App. 420,206 N.E.2d 625
• Parties: Floyd APPLE and Edwin Braddock, as Co-Administrators with the Will Annexed of the Estate of William R. Braddock, Hazel Naylor, Grace Ferrls, Edwin Braddock, Mary Rose Apple, Appellants, v. METHODIST HOSPITAL OF INDIANA, INC., Appellee
• Court: Indiana Appellate Court

Page 625

206 N.E.2d 625

138 Ind.App. 420

Floyd APPLE and Edwin Braddock, as Co-Administrators with the Will Annexed of the Estate of William R Braddock, Hazel Naylor, Grace Ferrls Edwin Braddock, Mary Rose Apple, Appellants, v. METHODIST HOSPITAL OF INDIANA, INC., Appellee.

No. 19874.

Appellate Court of Indiana, Division No. 2.

May 6, 1965.

Rehearing Denied May 27, 1965.

[138 INDAPP 420]

Ging & Free, Glenn T. Williams, C. Thomas Cone, Greenfield, Pell & Matchett, Shelbyville, for appellants.

Howard J. DeTrude, Jr., Erle A. Kightlinger, Indianapolis, H. Harold Soshnick, Shelbyville, for appellee.

SMITH, Judge.

This is an action brought by the appellee, Methodist Hospital Inc., to quiet title to certain real estate devised to appellee by Ada Blanche Braddock McNew, deceased. An intervention was made by appellants, Co-Administrators with the will annexed of the estate of William R. [138 INDAPP 421] Braddock, deceased, who filed a cross-complaint for authority to sell said real estate under the provisions of the will of William R. Braddock, deceased.

The issues were formed by the complaint and the answers by the defendants and intervenors, and by the cross-complaint and the answer by the plaintiff. Trial was had without jury upon an agreed stipulation of facts. The court returned a finding for the appellee on its complaint to quiet title and against the appellants on the cross-complaint and judgment was entered accordingly.

The sole error assigned on appeal is the overruling of the appellants' motion for a new trial. The appellants have urged several specific errors which substantially involve the same issue, which is the trial court's ruling on the interpretation of certain language used by William R. Braddock, deceased, in his will. The appellants claim that by the terms of said will, under which they are asserting title, Ada Blanche Braddock McNew was given a fee determinable in the real estate which reverted to the residuary legatees of Braddock and their descendants upon the death of Ada without leaving any surviving issue. The appellee, on the other hand, asserts that Ada was given a conditional fee which upon the death of Braddock ripened into a fee simple and which passed to the appellee by the terms of Ada's will.

Therefore, the only question for decision by this court is whether by the terms of William R. Braddock's will executed in 1869 Ada Blanche Braddock McNew was devised a fee determinable or a conditional fee.

In order to ascertain the nature of the estate that Ada Blanche Braddock McNew held it is necessary to examine the language used by her father in his will in which he devised her disputed interest in the realty.

In 1869 William R. Braddock was the owner in fee simple of the real estate in question and he executed his last will and testament. At both the time of execution and at the time [138 INDAPP 422] of his demise Braddock's mother and wife were alive as well as the two daughters. He used the following language which gives rise to this suit:

'* * * I give, devise and bequeath the same to my two children, Margaret Alice Braddock and Ada Blanche Braddock, to be held by them and their heirs forever. * * * In case that either of my said children shall die without a living child or children, then I direct that entire Real Estate above described to the survivor. And further in case both of my said children should die leaving no living child or children, then I direct that after the decease of my Mother and my Wife the above described Real Estate be all sold and out of the proceeds, * * * [herein certain specific bequests then] * * * I give and bequeath the residue of all my estate in equal parts to my Brothers and Sisters * * * or their heirs.' (emphasis supplied)

The testator died on Amy 3, 1869, his mother died in 1870, his wife died in 1872 and the other daughter, Margaret Alice Braddock, died a minor in 1874 leaving no issue.

Ada Blanche Braddock McNew married in 1894 and her husband died eight months later. She never remarried and never had any children. On April 9, 1949 she died testate naming the appellee, Methodist Hospital Inc., the residuary legatee of her estate by which devise they now claim title to the real estate in question.

[1, 2] In deciding the nature of the estate devised to Ada Blanche Braddock McNew this court must rely on several established rules. It is a universally recognized rule that the intention of the testator, when it is clearly expressed must be given effect in the construction of a will. Hutchinson's Estate v. Arnt (1936), 210 Ind. 509, 1 N.E.2d 585, 108 A.L.R. 530, rehearing denied 210 Ind. 509, ...