Busick v. Busick

• Decision Date: 06 April 1917
• Docket Number: No. 9681.,9681.
• Citation: 65 Ind.App. 655,115 N.E. 1025
• Parties: BUSICK et al. v. BUSICK et al.
• Court: Indiana Appellate Court

65 Ind.App. 655

115 N.E. 1025

BUSICK et al.

v.BUSICK et al.

No. 9681.

Appellate Court of Indiana.

April 6, 1917.

Appeal from Circuit Court, Wabash County; Chas. A. Cole, Judge.

Suit to quiet title by Gillen D. Busick and others against Kate M. Busick, and others.Judgment for defendants, and complainants appeal.Reversed, with instructions.

Elias D. Salsbury and Frank S. Roby, both of Indianapolis, and Walter S. Bent, of Wabash, for appellants.Warren G. Sayre and H. N. Hipskind, both of Wabash, for appellees.

FELT, C. J.

This suit was brought by appellants against appellees to quiet the title to certain real estate in Wabash and Huntington counties, Ind. Issues were formed by a general denial to the complaint, and by an agreement that all defenses might be made under such denial.On due request the court made a special finding of facts and stated conclusions of law thereon, which were in favor of appellees.The judgement follows the conclusions of law.The errors assigned question the correctness of each of the conclusions of law.

The facts found are, in substance, as follows:

Joseph W. Busick died testate on March 8, 1897, leaving surviving him his wife, Kate M. Busick, his daughter Margaret Bailey, the child of Kate M. Busick, and his son Gillen D. Busick by a former wife, and Allen G. Busick, an adopted son.The will was executed October 16, 1896, and was duly probated in the Wabash circuit court on March 12, 1897, and, as far as material here, provides, in substance, as follows:

In item 1 the testator bequeathes to his wife his household goods, furniture, and library.

Item 2 directs his executors to make an inventory of all his property except that devised by item 1, and to cause the same to be appraised at its cash value, but provides that for the purpose of distribution under the will certain real estate shall be taken at the value fixed by the testator, and the item also directs the payment of all just debts of the testator.

Item 3 forgives and eliminates from his estate all advancements made to his sons, and directs that an advancement of $9,000 made to his daughter be charged against her, and that all other debts due him from her be forgiven.

Items 4, 5, and 6 describe various lots and tracts of real estate, and fix the value at which they are to be taken by the legatees under the will.

Item 7 devises and bequeaths to the testator's wife, Kate M. Busick, his residence valued at $8,500, a storeroom and lot valued at $11,000, and a sufficient amount of other property, to be selected by her at the appraised value, sufficient to make the whole amount of property received by her equal in value to one-third of the entire value.

Item 8 is as follows:

“I will and devise to my son, Gillen D. Busick, the west farm containing 274 acres, and the Chase property on Manchester avenue in the city of Wabash, all in Wabash county, Indiana, and by me valued at sixteen thousand and seven hundred dollars, and more fully described in item 6 above to have and to use the same, and the rents and profits thereof during the full period of his natural life, and at his death the same shall vest in and equally belong to his lawful children, who may survive him, and in case my said son, Gillen D. Busick, die, leaving no children alive at such time, then I will and direct that said real estate shall revert to my estate and be disposed of as provided in item 10, hereinafter set out.”

Item 9 devises certain specified property to Margaret Bailey under the same conditions and by the same provisions as these of item 8.

By item 10 the testator gives certain directions for setting off to his wife the property devised to her and to his children the property devised to them and then provides that his property not specifically disposed of by the will shall be reduced to cash or securities by his executors, and that they-

“shall keep the same, to the best advantage invested in interest bearing securities one-half thereof for the benefit and use of my said son Gillen D. Busick, and one-half thereof for the benefit of my daughter, Marguerite, to be held in trust for each of them, and the one-tenth part of the same, and the annual interest on the whole of such half, less the actual and necessary expense be paid to each, each year, the whole of each one's share being paid to them in ten years, should they live so long, but in case of the death of either or both before such ten years shall have elapsed leaving children surviving them, in such case, the amount unpaid shall be put at interest for the benefit of the surviving children, and the interest thereon used for their maintenance, and the principal of such share shall be equally divided among such children as they reach the age of twenty-one years, and should none of the children of my daughter Marguerite live to the age of twenty-one years, then the children of my son Gillen D. Busick who live to the age of twenty-one years, shall be paid the entire portion remaining, and should none of the children of Gillen D. Busick live to the age of 21 years and the children of my daughter Marguerite reach the age of 21 years, then in such case the entire portion remaining shall belong to her children, and in the event of the death of both of said Gillen D. and said Marguerite, leaving no children surviving them, then whatever remains of my estate at such time shall be divided into two equal parts, one part to my wife Kate M. Busick, if she be living, and the other part to be divided equally between the children of my brotherE. D. Busick, and those of my sisterMary Garron, and if my said wife be not living at such time, then all shall be divided between the children of my said brother and sister one-half to each family.

And I further will and direct that the real estate heretofore described and willed to my said son and daughter under conditions expressed shall in case they die without living children, shall in such case descend and pass in precisely the same manner and course as set out above in this item in reference to personal property under the same condition.”

By item 14, $1,000 is devised to Allen G. Busick, the adopted son.

In item 15 the testator describes certain real estate owned by him in Huntington county, Ind., and then provides that:

“Now in order to make the amount of land set apart for use of my said children more nearly equal in value than as hereinabove set forth, I will and direct that the above and foregoing described land in Huntington county, Indiana, in addition to land named and described in item 0, above set apart for the use of my said son Gillen D. Busick, in exactly the same way as other land devised to him, with this further condition that the 33 acres be his absolutely in fee simple, and the remainder may be sold at any time by my executors and the amount realized therefrom be added by them to his share of personal property, and then take precisely the same course as other personal property devised by me for his use, and the above tract shall be set aside for his use and added to his interest prior to the division provided for in item 10 above.”

The court also found that the testator was at the time of his death the owner in fee simple of the real estate devised by him and that the appraised value of his estate was $109,043.55; that his widow elected to take under the will; that the three executors named in the will duly qualified but two resigned, leaving Kate M. Busick, sole executrix; that the estate was settled and the executrix duly discharged in April 19, 1900; that at the time of the making of the will and of the testator's death Gillen D. Busick was 36 years of age and had an expectancy of 30 to 31 years according to the Carlisle Tables of Mortality; and Margaret Bailey was 30 years of age; that at the time of the death of the testator Gillen D. Busick had two children living, Josephine Busick, born on December 31, 1886, and who at the death of the testator had an expectancy of 48 to 49 years, and who died intestate on June 11, 1897; La Moine Busick, his son, born June 12, 1888, who at the death of the testator had an expectancy of 50 to 51 years, and who died intestate on August 21, 1908; that said Josephine left surviving her as her only heirs at law her father and mother aforesaid and her brother, La Moine Busick; that La Moine Busick died unmarried, leaving as his only heirs at law his mother, Kate M. Busick, and his father, Gillen D. Busick; that the trust created by item 10 of the testator's will was finally settled on or about November 26, 1907, and the trustee fully discharged; that on November 1, 1908, Gillen D. Busick commenced a proceeding in the Wabash circuit court to construe item 15 of said will and made parties thereto Kate M. Busick, executrix, Kate Busick, Margaret Bailey, Robert Bailey, and La Moine Busick, and upon issues joined the court decreed that the executors were invested with discretionary power and, having refused to sell the land, the “plaintiff takes, under the terms of item 15 of said will, a life estate in said lands and that the remainder goes in the same manner as the other lands devised to the plaintiff under the terms of said will as set out in item 8 thereof; that said decree was not appealed from, and still remains in force”; that on February 14, 1912, Gillen D. Busick and Rose M. Busick filed their complaint in the Wabash circuit court, to quiet title to the lands described in item 8 aforesaid, making defendants thereto the defendants to this suit; that a cross-complaint was filed in said suit by a party claiming an interest in the land and thereafter the complaint was dismissed, and on April 8, 1913, by agreement of the parties a receiver was appointed to lease the real estate, collect rents and pay taxes, costs and charges, and the order appointing such receiver provides that “this decree and stipulation shall at no time become or be construed as an adjudication of any question of law or fact or as...