Clearspring Tp. of La Grange Cnty. v. Blough

Decision Date25 May 1909
Docket NumberNo. 21,184.,21,184.
Citation173 Ind. 15,88 N.E. 511
PartiesCLEARSPRING TP. OF LA GRANGE COUNTY v. BLOUGH et al.
CourtIndiana 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.

MYERS, J.

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:

“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 (4) 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 (3), and one-half out of the southeast corner of the west half of the southeast corner of the west half of the southeast quarter of said section three (3), 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 two thousand dollars ($2,000.00).

“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, La Grange county, Indiana, all my real and personal estate, subject to bequests, uses and benefits set forth in items one (1), two (2), and three (3), of this, my last will. The 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 (3), of this, my last will. The interest derived from said funds, and the income derived from said lands shall constitute at fund in the hands of said township: First, to maintain and care for said monument, fence and land enclosed; and second, 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 on what account, the person to, 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, 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 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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