Attica Bldg. & Loan Ass'n of Attica v. Colvert

• Decision Date: 15 November 1939
• Docket Number: No. 27171.,27171.
• Citation: 216 Ind. 192,23 N.E.2d 483
• Court: Indiana Supreme Court
• Parties: ATTICA BUILDING & LOAN ASS'N OF ATTICA et al. v. COLVERT et al.

216 Ind. 192
23 N.E.2d 483

ATTICA BUILDING & LOAN ASS'N OF ATTICA et al.
v.
COLVERT et al.

No. 27171.

Supreme Court of Indiana.

Nov. 15, 1939.

Action by Catherine Colvert against the Attica Building & Loan Association of Attica, Ind., and others for a review of a judgment quieting title to and partitioning real estate. From a judgment for plaintiff, the Attica Building & Loan Association of Attica, Ind., and others, appealed, and the case was transferred from the Appellate Court under Burns' Ann.St.1933, § 4-209.

Affirmed.

[23 N.E.2d 486]

Appeal from Fountain Circuit Court; Charles A. West, Special judge.
William Kummings, of Crawfordsville, and Courtney W. Dice and Ward S. Williams, both of Covington, for appellants.

Lee Whitehall, of Attica, and White & White, of Covington, for appellees.

FANSLER, Chief Judge.

This is an action begun by the appellee Catherine Colvert on June 19, 1929, for a review of a judgment, quieting title to and partitioning real estate, entered on June 13, 1917. It is alleged that prior to December 26, 1928, she was a minor. It was held that there was error of law appearing in the proceedings in which the original judgment was entered, and the original judgment was set aside.

Appellant, The Attica Building & Loan Association of Attica, Indiana, assigns as error the overruling of a demurrer to the second amended complaint, upon which the cause was tried, and the sustaining of a demurrer to the third paragraph of answer, and the overruling of a motion for a new trial.

It appears that Hester Jane Colvert died testate in 1908, the owner of 587 acres of land in Fountain County. She left surviving her four sons and several grandchildren, children of the sons. She left a will, which was duly probated, which is as follows:

‘I, Hester J. Colvert, of the city of Attica, Fountain County, Indiana, being of sound mind and disposing memory, do make, publish and declare the following to be my last will and testament:--

‘Clause 1. I will and devise to my son Corwin Colvert all of my real estate wherever the same may be situated to be held by him in trust upon the following terms and conditions:--

‘First: He is to rent such real estate for the best terms obtainable and apply the proceeds, first to the payment of the taxes and keeping the real estate in repair; Second, he shall divide the residue of such rents equally between my four sons, William Colvert, Armstrong Colvert, Charles Colvert and himself, the said Corwin Colvert.

‘Second: The said trustee shall have no power or authority to sell or incumber said real estate or to partition or divide the same during this trust.

‘Third: This trust shall continue so long as either of my said four sons shall survive.

‘Fourth: When either of my said sons shall die after my death, the rents so to be divided shall then be apportioned among the remaining sons living and so continue until the last son shall die, the widows and children of the sons dying to have none of the rents and profits so long as any one of said sons survive.

‘Fifth: In case my said son, Corwin Colvert, shall die before all his brothers shall die, then my son Armstrong shall act as such trustee and in case he shall die before his brothers, he shall be succeeded in such trust by the remaining two brothers and the survivor of them shall continue until his death.

‘Clause 2. When all of my said sons shall be dead, then I devise the fee simple interest in all of my said real estate to such of my grandchildren, children of said four sons, as may then be living, share and share alike, the number to share to be determined by those living at the death of my last son and such grandchildren as shall die before the death of my last son shall have no interest in such remainder.

‘Clause 3. I nominate and appoint my son Corwin Colvert as Executor of this my will.

[23 N.E.2d 487]

‘In witness whereof, I have hereunto set my hand and seal this April 29th, 1905.

‘Hester Jane Colvert.’

In 1916, William Colvert, one of the sons of Hester Jane Colvert, brought an action against his three brothers and their wives, and William E. Colvert, Frederick Colvert, Louise Colvert, and Catherine Colvert (the plaintiff in the present action), and the executor and trustee of the will of Hester Jane Colvert. The complaint was in two paragraphs. In the first paragraph it was alleged that the plaintiff and his three brothers were the owners in fee simple as tenants in common of an undivided one-fourth each of the 587 acres of land of which their mother died seized; that the children who were named defendants were in being at the death of Hester Jane Colvert; that they were all under the age of twenty-one years; and that they ‘have no interest in said real estate, unless it would be pursuant to a certain will executed by one Hester Jane Colvert, now deceased, which will has been duly probated in this court, and which reads as follows: * * *.’ The will is thereafter set out in full. It is alleged in this paragraph that Hester Jane Colvert was the mother of the plaintiff and his brothers, and that she died seized of the real estate in question, and that she is the grandmother of the minor children who are made defendants. It is further alleged that the executor and trustee under the will and the grandchildren of the testatrix who were made defendants are asserting an interest in the land pursuant to the will, and that their claims are adverse to the rights of the plaintiff and his brothers and are unfounded and a cloud upon their title. The second paragraph alleges that the plaintiff and his three brothers are the owners in fee simple as tenants in common of the real estate in question; that they are entitled to have their interests set off in severalty; and that the other defendants have no interest in the property. There was prayer that title be quieted, and that the plaintiff and his brothers be declared the owners of the real estate in fee simple, and that the claims of the other defendants be declared null and void, and that the real estate be partitioned among the plaintiff and his brothers. Summons was issued and served on the infant defendants. Charles R. Milford, an attorney at law, was appointed guardian ad litem for all of the minor defendants, and as such guardian filed a demurrer to the first paragraph of complaint for want of facts. In a memorandum attached to this demurrer it is asserted that Hester J. Colvert was in her lifetime the owner of the real estate described in the complaint; that her will, which was set out verbatim in the first paragraph of the complaint, had been duly probated, as appeared from the allegations of the complaint; that the validity of the will is not attacked in any way in the complaint; that the complaint shows on its face that the minor defendants were grandchildren of the testatrix and were alive at the time of her death, and that they were the children of her sons; that it appears therefore from the terms of the will that the interest of the plaintiff and his brothers amounted only to a life estate. Afterwards, and before there is any record of this demurrer having been ruled on, the guardian ad litem filed what is denominated a demurrer to the complaint on behalf of the minor defendants. This demurrer was for want of facts. A memorandum to this demurrer is an elaboration of the matter set out in the memorandum to the first demurrer. At the same time the defendant Corwin Colvert, one of the brothers, by his attorneys, one of whom was the guardian ad litem, also filed a demurrer to the complaint as a whole, which was substantially the same as the second demurrer filed by the guardian ad litem, and a like demurrer was filed by Corwin Colvert as executor and trustee under the will. Thereafter all of these demurrers were overruled. The order as to the demurrer of the guardian ad litem reads: ‘And the court being fully advised in the premises overrules the separate demurrer of Charles R. Milford guardian ad litem for the infant defendants in this cause, and to the ruling of the court the guardian ad litem for said infant defendants excepts.’ Thereafter all of the defendants filed an answer in general denial. The cause was submitted to the court for trial, and the record recites that the court, having heard the evidence and being duly advised, finds that the plaintiff and his brothers are the owners in fee simple of the land in question; that the executor and trustee has no interest; and that the claims of the minor defendants are each and all without right and unfounded; and title was quieted against them. It was further found that the plaintiff and his three brothers were entitled to have partition, and partition was ordered. Commissioners were appointed. They filed

[23 N.E.2d 488]

a report, partitioning the property, which was approved and confirmed by the court.

The plaintiff in her complaint alleged all of these facts, and asserts that the court erred in overruling the demurrer of the minor defendants in said cause, and that the complaint did not state facts sufficient to constitute a cause of action against her, or any or all of the infant defendants.

A demurrer to this complaint was overruled. Appellant, The Attica Building & Loan Association of Attica, Indiana, filed an answer in three paragraphs. A demurrer was sustained to the third paragraph. The cause being thus at issue was submitted to the court for trial, and there was judgment for the plaintiff.

The appellee Catherine Colvert has moved to dismiss the appeal upon the ground that the transcript and assignments of error were not filed in this court within ninety days after judgment. They were filed within ninety days after the ruling upon appellants' motions for a new trial; but it is contended that, since this is an action to review for error, no motion for a new trial is contemplated. The appellants apparently believed, and are contending here, that the evidence was insufficient to sustain the allegations of the...