Clearspring Tp. of La Grange Cnty. v. Blough
Decision Date | 25 May 1909 |
Docket Number | No. 21,184.,21,184. |
Citation | 173 Ind. 15,88 N.E. 511 |
Parties | CLEARSPRING TP. OF LA GRANGE COUNTY v. BLOUGH et al. |
Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, La Grange County; James S. Dodge, Judge.
Proceedings by the Clearspring Township of La Grange County for the probate of the will of Valentine Blough, in which Noah Blough and others filed objections. From a judgment denying probate, proponent and others, made parties by the objectors, appeal. Reversed and remanded.
Miller, Drake & Hubbell, Merritt & Duff, Ballou & Green, and F. J. Dunten, for appellants. Thomas R. Marshall, John W. Hanan, and Merrill Moores, for appellees.
On the 17th day of September, 1907, appellant township presented in the La Grange circuit court an instrument in writing purporting to be the last will and testament of Valentine Blough, deceased, and moved that it be so admitted to probate. Appellees, sons of the decedent, appeared at the same time and objected to such probate, and time was given them to file their objections. On the 20th day of September they filed written objections as reasons against probate, 10 in number, of which the fifth, eighth, and tenth went out on demurrer, those remaining being:
First, that on the 14th day of July, 1897, the date of the instrument proposed as the will of Valentine Blough, deceased, he was of unsound mind.
Second, that item 4 is not a charitable devise and bequest, and that the validity of the will all depends and rests upon said item 4.
Third, that 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.
Fourth, that 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 $2,000 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.
Sixth, that the trustee appointed under item 4 of said will has no discretion as to the persons who shall share in the benefits of said pretended trust.
Seventh, that 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 La Grange county, Ind., cannot act as trustee.
Ninth, that the terms and conditions thereof are not enforceable as shown by the terms thereof, either at law or in equity.
Said objectors made parties Clearspring township, La Grange county, Ind., Amanda Blough, widow of said Valentine Blough, and John Blough, as executor of said pretended last will and testament, as all the persons benefited.
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, La Grange 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 1 devises to appellee Noah Blough 220 acres of specifically descried 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 2 devises 260 acres of specifically described real estate to appellee Henry Blough on the same terms and conditions as in the case of the devise to Noah Blough.
Items 3, 4, and 5 are as follows:
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 La Grange county, and 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 question as presented by the other objections, from the face of the instrument, shall 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, and of no binding force, validity, or effect whatever; that it is not such an instrument, the said Valentine Blough not being buried upon the farm therein described, as can be enforced at law, or should be enforced in equity; and the further stipulations and conditions of the will are void in law and in equity; and rendered judgment refusing probate of the will, and against appellants for costs. A separate motion for a new trial was filed and overruled, and exception reserved, an appeal 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, and in overruling the demurrers to the second, third, fourth, sixth, seventh, and ninth objections, in overruling their motions for a new trial, and in adjudging the will invalid on its face, and refusing to hear evidence of its execution.
Appellees here move the court 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 wills, where there...
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