Bircher v. Wasson, 19388

• Citation: 133 Ind.App. 27,180 N.E.2d 118
• Decision Date: 09 February 1962
• Docket Number: No. 19388,No. 1,19388,1
• Parties: Elsie BIRCHER, Jeannette Gray, and The Elberfeld State Bank, Co-Executors of the Estate of James R. Wasson, Deceased, and Elsie Bircher and Jeannette Gray, as Individuals, v. James M. WASSON et al
• Court: Court of Appeals of Indiana

Page 118

180 N.E.2d 118

133 Ind.App. 27

Elsie BIRCHER, Jeannette Gray, and The Elberfeld State Bank Co-Executors of the Estate of James R. Wasson Deceased, and Elsie Bircher and Jeannette Gray, as Individuals, v. James M. WASSON et al.

No. 19388.

Appellate Court of Indiana, Division No. 1.

Feb. 9, 1962.

Dunbar & Dunbar, Merlin M. Dunbar, Lucien L. Dunbar, Thomas Clay Collier, Indianapolis, John P. Lutz, Booneville, for appellants.

Bamberger, Foreman, Oswald and Hahn, Evansville, for appellees Charlotte E. Wasson; Louis G. Wasson; Louis G. Wasson, Co-Executor of Estate of James R. Wasson, deceased; Valerie Wasson, Pamela Wasson and John Wood Wasson, by their Guardian Louis G. Wasson; Charlie E Joseph H. Harrison, Evansville, Guardian Ad Litem for Judith Ann Wasson, Karen Charlotte Smith, Mark Branson Smith, Reed Wasson Hoyt, Phelps Wasson Hoyt, Scot Wasson Hoyt, Cheryl Rae Wasson, Donna Ann Wasson (LaDonna Wasson), Frank Ertel Wasson, Jed Ross Wasson, Rita Jeanne Wasson, Gregory Louis Wasson, Jann Maurine Wasson and Wilbur Gordon Wasson.

Wasson, and Charles Allen Wasson, by his Guardian Charlie E. Wasson.

AX, Judge.

Appellants filed an amended petition to construe Item Three of the will of James R. Wasson, deceased, claiming in substance that an attempted devise under said Item Three to transfer all of decedent's real estate to the Trustees of a purported separate trust for his grandchildren was void and that therefore said real estate passed by Item Four of his said will to his children, the residuary devisees.

From an adverse judgment of the court below which found against appellants by construing that Item Three of said will was valid and that the real estate passed to the Trustees of a trust referred to in said Item Three for the benefit of the grandchildren of decedent, appellants have brought this appeal raising the question that the decision and finding of the court is not sustained by sufficient evidence and is contrary to law.

By stipulation, appellants (petitioners below) introduced into evidence the probated will of decedent showing the date of execution as February 21, 1951. The pertinent parts of this will involved herein are the following:

'ITEM THREE (3). All of my real estate of which I shall die seized and possessed, or to which I may be entitled at the time of my decease, I give, devise and bequeath at the time of my decease to my Trustees as set out in my Trust Agreement for the benefit of all my grandchildren, per capita, share and share alike. In case any other child or children shall be born to my children before my death, they shall share, per capita, under the terms of the Trust Agreement. In case of the birth of such child or children to my children after my death, such issue shall share, per capita, under the terms of the Trust Agreement. In the event of the death of any of my grandchildren before my demise or during the term of the said Trust Agreement, the share or shares of the deceased grandchild or grandchildren shall be divided equally among the remaining grandchildren.

'ITEM FOUR (4). All the rest residue and remainder of the property of whatsoever character and wheresoever situate not heretofore disposed of by me of which I may die seized or possessed, or which I may own or have any interest in at the time of my death, I give, devise and bequeath to all my children surviving me, share and share alike.

'ITEM SIX (6). I hereby nominate and appoint Louis G. Wasson, my son, Jeannette Gray, my daughter, Elsie Bircher, my daughter and The Elberfeld State Bank, Elberfeld, Indiana and its successors trustee of the Trust herein mentioned.'

Also by stipulation, appellants introduced in evidence an instrument labeled 'JAMES R. WASSON TESTAMENTARY TRUST' showing execution as of February 21, 1951. The pertinent parts of the instrument are as follows:

'THIS AGREEMENT executed in duplicate in the City of Evansville, County of Vanderburgh, State of Indiana, this 21st day of February, 1951, between James R. Wasson of Evansville, Indiana (hereinafter called the 'Donor') and Louis G. Wasson, Jeannette Gray, Elsie Bircher and The Elberfeld State Bank jointly (hereinafter called the 'Trustees') WITNESSETH:

'That in consideration of acceptance by the Trustees of the Trust hereby created and the payment by the Donor to the Trustees of the sum of One Dollar ($1.00) the receipt of which is hereby acknowledged; The Donor does assign, transfer and deliver to the Trustees at the time of his demise the property described in 'Exhibit A' attached hereto and the Trustees agree to hold, manage, invest and distribute the same as a Trust Fund upon the following terms and conditions:

'DIVISION INTO SHARES

'Upon the death of the Donor, The Trustees shall act with full power and authority at any time or times to sell, mortgage, pledge, exchange or otherwise deal with or dispose of the property comprising the estate upon such terms as they shall deem best, to settle and compound any and all claims in favor of or against the estate as they shall deem best, to settle and compound any and all claims in favor of or against the estate as they shall deem best, and for any of the foregoing purposes to make, execute and deliver any and all deeds, contracts, mortgages, bills of sale or other instruments necessary or desirable therefor and to perform all and every act and thing whatsoever, requisite, necessary and proper as they shall deem best for the benefit of each of the following heirs-at-law:

'James R. Wasson Testamentary Trust

'1. Richard Z. Wasson

'2. Judith Ann Wasson

'3. Charles Allen Wasson

'4. Valerie Wasson

'5. Pamela Wasson

'6. John Wood Wasson

'7. Rita Jeanne Wasson

'8. Gregory Louis Wasson

'9. Jann Maurine Wasson

'10. Cheryl Rae Wasson

'11. LaDonna Wasson

'12. Karen Charlotte Smith

'13. Mark Branson Smith

'And for any child or children who shall be born to my children either before or after my death, all of whom shall share and share alike, per capita, all under the terms and conditions hereinafter set forth.

'RESERVATION AS TO PAYMENT OF NET INCOME TO BENEFICIARIES

'The Trustees shall let the net income accumulate and be reinvested and become a part of the principal until all payments, mortgages and loans secured and unsecured now existing and required in the future on real estate or against the value of the property are paid or are sufficiently reduced so as not to jeopardize the estate as a whole if and when said income is paid.

'GRANDCHILDREN'S SHARE--REMAINDER TO DESCENDANTS

'The Trustees shall pay the net income derived from the estate for said grandchildren in as nearly equal amounts as practical as long as they shall live and on their death then to the surviving grandchildren. It is not the intent of the Donor to make any provision for the future respective husbands or wives of said grandchildren. This Trust shall be divided among the said grandchildren twenty-one (21) years from the death date of the Donor.

'INTEREST OF CESTUI

'The interest of each and every beneficiary hereunder and of all persons claiming under them or any of them shall be only in the earnings, avails and proceeds arising from the sale or other disposition of said real estate and such interest is hereby declared to be personal property and no beneficiary hereunder shall have any title or interest, legal or equitable in or to said real estate as such but only an interest in the earnings, avails and proceeds thereof as aforesaid.

* * *

* * *

'TO INVEST

'The Trustees may invest any money at any time in the Trust Fund in such Bonds, Stocks, notes, real estate or real estate mortgages or other securities or such other property real or personal, as the Trustees shall deem wise, without being limited by any statute or rule of law regarding the investment of Trust Funds, provided however, that the Trustees shall make no investment, sale or other disposition of the Trust Fund during the lifetime of the Donor so long as he shall be legally competent to act, without the prior written approval of the Donor, unless the Donor shall fail to indicate his approval or disapproval of any proposed sale or investment of said Trust Fund within thirty (30) days after he has been requested to do so.

'BROAD POWERS OF TRUSTEES

'The Trustees shall have full power at any and all times and from time to time to do any and all and every act whatsoever necessary and proper as they shall in their judgment deem best for the benefit of the beneficiaries hereunder.

'CHANGE OF TRUSTEE

'In the event of the death, inability or removal of either or all of the Trustees hereunder, the Donor or the wife of the Donor or if they be not then living, the majority in interest of the Donor's surviving children may nominate as successor Trustee hereunder any trust company, wherever situate. Such successor shall have all the duties, powers, and discretions hereinabove conferred upon Louis G. Wasson, Jeannette Gray, Elsie Bircher and The Elberfeld State Bank as Trustee. In the event that none of the children shall be living or competent to act then such Trustee shall be appointed by a court of competent jurisdiction. However if the Surviving Trustee so desires he or she or it may continue at his or her discretion the administration of the Trust Fund until such time as the surviving trustee may deem it expedient to hand over the Trust fund to the successor Trust company.

'IN WITNESS WHEREOF on this 21st day of February, 1951 the Donor has set his hand and seal and the Trustees have caused this Agreement to be executed by setting their hands and seals the day and year first above written and same will become effective upon the death of the said Donor.

's/ James R. Wasson SEAL

James R. Wasson, Donor

'_____ SEAL

Louis G. Wasson, Trustee

_____ SEAL

Jeannette Gray, Trustee

s/ Elsie Bircher SEAL

Elsie Bircher, Trustee

THE ELBERFELD STATE BANK SEAL

By s/ Charles A. Morris

Charles A. Morris, President'

Attached to said instrument appeared the following:

'JAMES...