Clearspring Township of Lagrange County v. Blough

• Decision Date: 25 May 1909
• Docket Number: 21,184
• Parties: Clearspring Township of Lagrange County et al. v. Blough et al
• Court: Indiana Supreme Court

88 N.E. 511

173 Ind. 15

Clearspring Township of Lagrange County et al. v. Blough et al

No. 21,184

Supreme Court of Indiana

May 25, 1909

Rehearing Denied October 14, 1909, Reported at: 173 Ind. 15 at 30.

From Lagrange Circuit Court; James S. Dodge, Judge.

Proceeding by Clearspring Township of Lagrange County to probate a will Noah Blough and another resisting. From the judgment rendered, plaintiff and another appeal.

Reversed.

Miller Drake & Hubbell, J. F. Dunten, Ballou & Green and Merritt & Duff, for appellants.

Thomas R. Marshall, John W. Hanan and Merrill Moores, for appellees.

OPINION

Myers, J.

On September 17, 1907, appellant township presented in the Lagrange Circuit Court an instrument in writing, purporting to be the last will and testament of Valentine Blough, deceased, and moved that it be admitted to probate. Appellees, sons of the decedent, appeared at the same time and objected to such probate, and time was given to them within which to file their objections. On September 20 they filed written objections against probate, ten in number, of which the fifth, eighth and tenth went out on demurrer, those remaining being: "(1) On July 14, 1897, the date of the instrument proposed as the will of Valentine Blough, deceased, he was of unsound mind. (2) Item four is not a charitable devise and bequest, and the validity of the will rests upon said item four. (3) It is an attempt to tie up in perpetuity the estate of the decedent, for the use, behalf and benefit of certain fixed persons, viz., the poor and needy persons living in Clearspring township at the date of the death of the decedent, such persons having been born in the limits of Clearspring township. (4) It is an attempt to establish a charitable trust, in connection with a private trust for the erection and permanent maintenance of an eight-foot iron fence around four rods square of land, and the erection of a two thousand dollar monument thereon, and in tying up his estate in perpetuity for the maintenance thereof, and said Valentine Blough is not buried upon said land, and had, prior to his death, erected a monument to himself in a cemetery in said county, and is now buried near said monument in said cemetery." "(6) The trustee appointed under item four of said will has no discretion as to the persons who shall share in the benefits of said pretended trust. (7) Said pretended and attempted trust set out in said will is not charitable, is purely private, and for such private charity said Clearspring township of said Lagrange county, Indiana, cannot act as trustee." "(9) That the terms and conditions thereof are not enforceable, as shown by the terms thereof, either at law or in equity."

Said objectors named as parties, and as all the parties benefited, Clearspring township of Lagrange county, Amanda Blough, the widow of said Valentine Blough, and John Blough, as executor of said pretended last will and testament.

The instrument offered for probate, and referred to in the objections which it accompanied, contained a general declaration as follows:

"I, Valentine Blough, of Clearspring township, Lagrange county, Indiana, desiring to provide for the support and maintenance of my two sons during their lives, and that certain persons living in said Clearspring township, after my death, should receive the final benefits of my estate, do make and publish this, my last will and testament, hereby revoking all former wills by me made."

Item one devises to appellee Noah Blough 220 acres of specifically described real estate for life, he to pay the taxes, keep the land fenced, and cut or remove no timber except such as is necessary for the use and benefit of the farm.

Item two devises 260 acres of specifically described real estate to appellee Henry Blough, on the same terms and conditions as in case of the devise to Noah Blough.

Items three, four and five are as follows:

"Item three. I give, devise and bequeath to John Blough, as trustee, all my personal property of every nature and description. He shall build a good, substantial iron fence, eight feet high, around a tract of land four rods square [items one and two being subject to this provision], one-half of which shall be taken out of the southwest corner of the east half of the southeast quarter of said section three, and one-half out of the southeast corner of the west half of the southeast quarter of said section three, and shall erect a monument to mark the resting place of the remains of myself, said monument, fence and improving of such lot to cost $ 2,000. The remaining portion of my personal estate, after paying the expenses of my last sickness and death, and the funeral expenses arising therefrom, he shall hold and securely invest until the death of both of my sons. During their lifetimes, he shall see that said monument, fence and land enclosed are properly cared for, paying to my said sons the remainder of the income derived from such personal estate, one-half to each of said sons, so long as they both shall live, and all to the son living, after the death of the other son, so long as he lives.

Item four. I give, devise and bequeath to Clearspring township, Lagrange county, Indiana, all my real and personal estate, subject to the bequests, uses and benefits set forth in items one, two and three of this my last will. Said township shall have the power to rent said lands to the best advantage practicable, and also invest the personal estate that may remain in the hands of my trustee, at the time of the death of my two sons, as set forth in item three, of this my last will. The interest derived from said funds, and the income derived from said lands shall constitute a fund in the hands of said township: (1) To maintain and care for said monument, fence and land enclosed; and (2) for the benefit of the poor and needy persons living in said township of Clearspring, who were born within the limits thereof. It shall be the duty of the trustee of said township to see that the land is properly cultivated, kept neat, and securely fenced, and report to the board of commissioners of said county, whenever he makes his report as overseer of the poor, a detailed statement showing the true condition of said trust estate, the amounts received by him and on what account, the person to whom, and the uses and purposes for which, any part of the same has been paid, and he shall satisfy said board of commissioners that said trust estate is securely invested, and that no part of the same shall be lost to the beneficiaries thereof. If, at any time, it shall appear to the court having jurisdiction in such matters that the trustee of said Clearspring township has not the power, or is incompetent for any reason, to manage said estate, then a trustee shall be appointed so to do by such court. Such trustee so appointed by such court shall, at least once a year, make a detailed report to such court, showing the amount received on account of said estate, and the persons to whom, and the uses and purposes for which, the same, or any part thereof, has been paid, and shall satisfy said court that said funds are properly and securely invested, and that no part thereof shall be lost to the benefit of the beneficiaries thereof.

Item five. I do hereby nominate and appoint John Blough executor of this my last will and testament."

Separate motions by Clearspring township, Amanda Blough, and John Blough, executor, to strike out all the objections other than the first, were overruled, and separate exceptions reserved, and separate demurrers by each of them to each of the objections, other than the first, were sustained as to the fifth, eighth and tenth, and overruled as to the others, and exceptions reserved.

A stipulation was then entered into between the parties, by which it was agreed that the decedent was buried in a public cemetery in Lagrange county; that prior to his death he had erected a monument to his memory in said public cemetery, and that the question of the soundness or unsoundness of mind of the decedent should be waived, and held in abeyance, until the questions presented by the other objections, from the face of the instrument, should be determined.

Appellants then offered competent evidence of the execution of the instrument as the last will and testament of the decedent, which was excluded, and the court refused to hear any evidence, and held that, from the face of the instrument offered, it is void; that it is not such an instrument (said Valentine Blough not being buried upon the farm therein described), as can be enforced at law, or should be enforced in equity, and that the further stipulations and conditions of the will are void in law and in equity. Judgment was rendered refusing probate of the will, and against appellants for costs.

Separate motions for a new trial were filed, and overruled, and exceptions reserved, and an appeal was prayed, and bond filed and approved.

Errors are assigned separately by the appellants, as to the ruling of the court on the motions to strike out the objections, other than the first, in overruling the demurrers to the second, third, fourth, sixth, seventh and ninth objections, in overruling their motions for a new trial, in adjudging the will invalid on its face, and in refusing to hear evidence of its execution.

Appellees here move to dismiss the appeal as to Amanda Blough, on the ground that she has no interest in the controversy. Appellees made her a party, alleging that she had an interest, and secured a judgment against her for costs, and cannot now be heard to say that she is not a party in interest.

On the part of appellants it is claimed that in proceedings to probate a will where there is resistance to probate, the statutory grounds (§ 3154 ...