Brown's Estate, In re

• Decision Date: 05 November 1969
• Docket Number: No. 1,No. 968A148,968A148,1
• Citation: 145 Ind.App. 591,252 N.E.2d 142
• Parties: In the Matter of the ESTATE of Guy BROWN, Deceased. Mary BROWN, Appellant, v. Preston SCHAFFER, Executor of the Estate of Guy Brown, William Schaffer, Tom Schaffer, Appellees
• Court: Indiana Appellate Court

Page 142

252 N.E.2d 142

145 Ind.App. 591

In the Matter of the ESTATE of Guy BROWN, Deceased.

Mary BROWN, Appellant, v. Preston SCHAFFER, Executor of the Estate of Guy Brown, William Schaffer, Tom Schaffer, Appellees.

No. 968A148.

Appellate Court of Indiana, Division No. 1.

Nov. 5, 1969.

H. Earl Capehart, Jr., David F. Rees, Indianapolis, for appellant; Kreig, DeVault, Alexander & Capehart, Indianapolis, of counsel.

James Young, Young & Vandivier, Franklin, for appellees.

COOPER, Judge.

This matter comes to us from the Superior Court of Johnson County, wherein Preston Schaffer, Executor of the Last Will and Testament of Guy Brown, deceased, filed his Petition for Construction of said last will and testament. The appellant Mary Brown filed her reply in compliance with Rule 1--3 of the Supreme Court of Indiana, admitting and denying the allegations of the petition. The cause thus being at issue, it was submitted to the Court on stipulated facts and oral testimony. Thereafter judgment was rendered in favor of the appellees herein upon said petition.

Subsequently, Mary Brown filed her motion for a new trial alleging therein that the decision of the Court was not sustained by sufficient evidence and that the decision was contrary to law. The motion for new trial was overruled and this appeal followed.

The record reveals that Guy Brown died testate on May 12, 1967, being at the time of his death, ninety four (94) years of age, and domiciled in Johnson County, Indiana. His Last Will and Testament which had been executed on October 8, 1964, was admitted to probate in the Superior Court of Johnson County on May 23, 1967. The appellee Preston Schaffer was appointed as the Executor of the decedent's estate, is now, and has been at all times since his appointment, acting as such Executor.

At his death, the testator left surviving him as his sole and only heirs at law, and the persons who would have inherited the whole of his estate had he died intestate, a sister, Mrs. J. C. Sipe, a nephew, Charles Brown, and a niece, Dorothy McGowan, all of Indianapolis, Indiana. Mary Brown, the appellant herein and the person named as the legatee in Item IV of the testator's will, was the sister-in-law of the testator, being the widow of Thad C. Brown, a deceased brother of the testator.

The appellees Preston Schaffer, Tom Schaffer, and William Schaffer were friends of the testator but were not related to him. Robert Schaffer, a beneficiary named in Item V of said will, was also a friend, but of no relation to the testator.

The Last Will and Testament of the testator herein, Guy Brown, omitting the formal parts, reads as follows:

'I, Guy Brown, of the Town of Edinburg, Johnson County, State of Indiana, being of sound and disposing mind and memory do hereby make, publish and declare this instrument to be my last will and testament revoking any and all wills by me at any time heretofore made.

'ITEM I.

'I direct my Executor hereinafter named to pay all of my just debts out of the first monies coming into his hands as such.

'ITEM II.

'I hereby give and bequeath unto my sister, Mrs. J. C. Sipe, Grandview Drive, Indianapolis, Indiana, all time deposits that I may have at my death in the Edinburg State Bank, Edinburg, Indiana.

'ITEM III.

'I hereby give and bequeath unto Charles Brown and Dorothy McGowan, both of Indianapolis, Indiana, the children of my deceased brother, Thad C. Brown, the balance of all checking accounts which exist at the time of my death in the Edinburg State Bank, Edinburg, Indiana, and Irwin Union Bank and Trust Company, Columbus, Indiana.

'ITEM IV.

'I hereby give, devise and bequeath unto Mary Brown, my sister-in-law, and the wife of my deceased brother, Thad C. Brown, all of my right, title and interest in and to the estate of Harold C. Brown, my deceased brother, formerly of Leesburg, Indiana.

'ITEM V.

'I hereby give, devise and bequeath to Robert Schaffer of Indianapolis, Indiana, all of my right, title and interest in and to the balance of a certain contract of sale for the real property located at Highland Place and 25th Street in the City of Indianapolis, Marion County, Indiana, together with any interest I may have in said real property at the time of my death.

'ITEM VI.

'I hereby give, devise and bequeath unto Preston Schaffer, Edinburg, Johnson County, Indiana, the real property known as 402 East Thompson Street, Edinburg, Indiana, more particularly described as follows:

'Lot number eleven (11) in Kyle's First Addition to the Town of Edinburg, Indiana.

the same to be his absolutely and in fee simple forever.

'ITEM VII.

'All the rest, residue and remainder of my estate, both real and personal of every kind and character, and wherever the same may be situate, I hereby give, devise and bequeath unto Tom Schaffer and William Schaffer, of the Town of Edinburg, Johnson County, Indiana, equally, share and share alike, absolutely and in fee simple forever.

'ITEM VIII.

'I hereby nominate, constitute and appoint Preston Schaffer as the Executor of this, my last will and testament.

'IN WITNESS WHEREOF, I have hereunto subscribed my name at Franklin, Indiana, this 8th day of October, 1964.

s/ Guy Brown

Guy Brown.'

The Petition for Construction of Last Will and Testament filed by the Executor, Preston Schaffer, omitting caption and signature, is as follows:

'Preston Schaffer as Executor of the Last Will and Testament of Guy Brown deceased, respectfully petitions the court as follows:

'(1) That he is the duly appointed, qualified and acting executor of the last will and testament of Guy Brown, deceased.

'(2) That the last will and testament of decedent was dated October 8, 1964, and has been admitted to probate.

'(3) That Item IV of said Will reads as follows:

'Item IV. I hereby give, devise, and bequeath unto Mary Brown, my sister-in-law and the wife of my deceased brother, Thad C. Brown, all of my right, title and interest in and to the estate of Harold C. Brown, my deceased brother, formerly of Leesburg, Indiana.'

'(4) That Item VII of said Will reads as follows:

'Item VII. All the rest, residue and remainder of my estate, both real and personal of every kind and character, and wherever the same may be situate, I hereby give, devise and bequeath unto Tom Schaffer and William Schaffer of the Town of Edinburg, Johnson County, Indiana, equally, share and share alike, absolutely and in fee simple forever.'

'(5) That the said Harold C. Brown predeceased the Testator herein and that administration was had upon his estate in the Kosciusko Circuit Court, Kosciusko County, Indiana, with the Executor therein filing his final report to the court on June 24, 1965, which report was subsequently accepted by the court, the Executor discharged and the said Estate closed, all prior to the death of Guy Brown, your testator herein.

'(6) That your testator, Guy Brown, was a distributee of the Estate of Harold C. Brown, and had received all of his distributive interest in and to the said estate prior to his death, converting same into assets of his own.

'(7) That an issue of construction has arisen with reference to Items IV and VII in that your Executor must determine whether the specific bequest set out in Item IV in favor of Mary Brown had lapsed, failed by reason of ademption or was void, at the date of death of your testator.

'(8) That in order to administer said estate and properly determine the interest of the various named devisees and legatees, in the Items above recited, it is necessary that this court make a construction of such items and a determination of the issues created thereby.

'(9) That the following persons named in such items are residents of the State of Indiana:

'Mary Brown, Tom Schaffer and William Schaffer.

'WHEREFORE, your executor prays that upon such notice as the Court may direct, and upon such hearing as the Court may require, the Court construe Items IV and VII of the last will and testament of Guy Brown, deceased, and for all other relief property (sic) in the premises.'

Since the decision in this case will be based in part upon the evidence submitted at the hearing before the trial court, we are setting out the stipulations in full, a summary of appellees' Exhibit number 1, and a summary of the testimony of James B. Young. The written stipulations, omitting formal parts, are as follows:

'1. There is before this Court for adjudication a Petition For Construction of Last Will and Testament of decedent herein filed by Preston Schaffer, Executor of the Estate of Guy Brown, deceased, on December 20, 1967. Due notice of the hearing set for 1:15 p.m. on January 12, 1968, has been given the interested parties; namely, Mary Brown and William Schaffer and Tom Schaffer, all residents of the State of Indiana.

'2. Mary Brown, respondent herein, is the person named as legatee in Item IV of decedent's will and is the sister-in-law of the decedent, being the wife of Thad C. Brown, deceased, a brother of the decedent.

'3. Tom Schaffer and William Schaffer, respondents herein, are the persons named in Item VII of decedent's Will as residuary legatees.

'4. Harold C. Brown, brother of the decedent, predeceased the decedent. Administration of the Estate of Harold C. Brown was had in the Kosciusko Circuit Court, Warsaw, Indiana, and the final report in such estate was filed June 24, 1965, subsequently accepted by the said Court and the estate closed prior to the death of the decedent on the 12th day of May, 1967. The decedent was a beneficiary of the Will of Harold C. Brown, deceased.

'5. The decedent received from the executrix of the estate of Harold C. Brown, the sum of $5,000.00 by check dated November 26, 1963, as a specific bequest; the decedent deposited such check to his account at The Edinburg State Bank, Edinburg, Indiana, on November 29, 1963, and on the 11th day of January, 1964, by check drawn on such account decedent purchased from The Edinburg State Bank Certificate of Deposit No. 51 in the...