Collins v. Held

• Decision Date: 17 November 1977
• Docket Number: No. 1-776A112,1-776A112
• Citation: 174 Ind.App. 584,369 N.E.2d 641
• Parties: Blanche COLLINS, Appellant (Defendant below), v. John HELD, Jean Shelton, Rebecca McLaughlin, Patricia Hardin, Barbara Hardin, Thomas Held, Robert Held, Marsha Wells and Ferd Grime, Appellees (Plaintiffs below), v. The Unknown Husband or Wife, the Unknown Widower or Widow, the Unknown Heirs or Devisees of John T. Devening, Jessie Devening, Malbrook Allender, Marjorie Grime, Gladys Held, Connie Ethel Allender, Warren P. Allender, and the Indianapolis and Cincinnati Traction Company, and all other Persons having an Interest in Real Estate Passing under Item 3 of the Will of John T. Devening, Deceased, Third-Party Defendants.
• Court: Indiana Appellate Court

Page 641

369 N.E.2d 641

174 Ind.App. 584

Blanche COLLINS, Appellant (Defendant below), v. John HELD, Jean Shelton, Rebecca McLaughlin, Patricia

Hardin, Barbara Hardin, Thomas Held, Robert Held, Marsha Wells and Ferd Grime, Appellees (Plaintiffs below), v. The Unknown Husband or Wife, the Unknown Widower or Widow,

the Unknown Heirs or Devisees of John T. Devening, Jessie

Devening, Malbrook Allender, Marjorie Grime, Gladys Held,

Connie Ethel Allender, Warren P. Allender, and the

Indianapolis and Cincinnati Traction Company, and all other

Persons having an Interest in Real Estate Passing under Item

3 of the Will of John T. Devening, Deceased, Third-Party Defendants.

No. 1-776A112.

Court of Appeals of Indiana, First District.

Nov. 17, 1977.

Robert Adams, Adams & Cramer, Shelbyville, for appellant.

James Matchett, Shelbyville, for appellees.

C. Thomas Cone, Greenfield, for appellee, Patricia Hardin.

LYBROOK, Judge.

Defendant-appellant, Blanche Collins, appeals from the trial court's granting of plaintiffs' Motion for Summary Judgment. ¹ We reverse, having found that the trial court erred in its determination of Indiana law applicable to the case at bar.

FACTS

The facts most relevant to this cause reveal that John T. Devening died testate on May 3, 1936, in Shelby County, and that the portion of Devening's will relevant to this controversy reads as follows:

"ITEM 3. I will and devise to my beloved wife, Jessie Devening, to have and to hold the same for and during the term of her natural life and for that term only, all the real estate of every kind and description and wheresoever located of which I may die seized. On the death of my said wife or in the event of her death prior to my decease it is my will that my daughters, Connie Ethel Allender and Gladys M. Held shall each take and hold the undivided one-half interest in said real estate for and during the term of their natural lives respectively, the fee simple of asid (sic) real estate to be vested in my grandchildren, children of my two said daughters. It is my will that said daughters hold said real estate as tenants in common for and during their respective natural lives and that same be not partitioned between them, but this will shall not preclude such division and partition if they so desire; if my said daughters desire and shall seek to partition the life estate held in said real estate by them then I will and direct that said real estate be divided and partitioned between them as nearly equally as possible. On the death of either of my said daughters it is my will that the children of such deceased daughter living at the time of her death shall take and hold absolutely and in fee simple free and clear of any interest or claim of such surviving daughter the part or interest in said real estate held by their deceased mother as life tenant. I will and direct that said real estate and no part or interest therein be not sold prior to the arrival at the age of twenty-one years of all my said grandchildren."

A genealogical chart has been included herein which summarizes the relevant facts of this case.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Devening was survived by his wife, Jessie, and two daughters, Connie Ethel Allender and Gladys M. Held. Connie was married to Warren P. Allender and had one son On May 9, 1944, Malbrook Allender died intestate. He was survived by his wife, Blanche Collins, defendant-appellant in the case at bar. In February, 1947, Connie Allender and her husband, Warren, conveyed all their interest (a life estate, vested in interest, for the life of Connie, see infra ) in the property mentioned in Item 3 by quit claim deed to Gladys Held. Testator's widow, Jessie, died on July 19, 1960. Gladys Held died intestate on November 2, 1973. Testator's other daughter, Connie, was still alive at the commencement of this action.

Malbrook Allender. Gladys was also married and had nine children.

The plaintiffs in this case are Gladys' children and Ferd Grime, husband of one of Gladys' children, Marjorie, who had died in 1957. Plaintiffs maintain that Item 3 devises the real estate mentioned therein as a class gift per capita, rather than per stirpes. On February 9, 1975, the court entered the following judgment granting plaintiffs' Motion for Summary Judgment:

"ORDER, JUDGMENT AND DECREE GRANTING MOTION OF PLAINTIFFS FOR SUMMARY JUDGMENT AND DENYING CROSS-MOTION OF DEFENDANTS FOR SUMMARY JUDGMENT

1. This cause came on to be heard on October 9, 1975, on a Motion for Summary Judgment by Plaintiffs filed June 23, 1975, and a Cross-Motion for Summary Judgment by Defendants filed October 8, 1975.

2. The Court has considered the several motions, the stipulations filed, the pleadings, judicial admissions, briefs of respective counsel and the arguments of counsel.

3. Accordingly, the Court is of the opinion that there is no genuine issue as to any material facts that has been shown to exist and that as a matter of law the Plaintiffs are entitled to a summary judgment in their favor and Defendants' Cross-Motion for summary judgment should be denied.

IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED, that:

(a) The motion of Plaintiffs for a summary judgment in their favor is granted.

(b) The cross-motion of Defendants for summary judgment in their favor is denied.

(c) The Court further adjudges that for the duration of the life of Connie Ethel Allender the eight (8) surviving children of Gladys Held, namely, John Held, Jean Shelton, Rebecca McLaughlin, Patricia Hardin, Barbara Hardin, Thomas Held, Robert Held and Marsha Wells are entitled to receive the entire use and income from the real estate owned by John T. Devening at his death and described in Plaintiffs' complaint. The Court further finds and adjudges that at the death of said Connie Ethel Allender the life estate in the use and income as held by the eight surviving children of said Gladys Held, will cease, and the remainder interest, which is a fee simple interest, will be allocated in ten undivided shares of one-tenth (1/10) each in the eight surviving children of Gladys Held, the estate of Marjorie Held Grime, the deceased child of Gladys Held, and the estate of Malbrook Allender, the deceased child of Connie Ethel Allender.

The above and foregoing is fully and finally ordered, adjudged and decreed as aforesaid, this 9 day of February 1976.

s/ Robert D. Ellison

/s Robert D. Ellison, Judge,

/s Shelby Circuit Court."

From this judgment, Blanche Collins appeals.

ISSUES

The parties raise the following issues for our review:

(1) Whether the trial court properly construed the will of testator Devening when the court said: ". . . at the death of said Connie Ethel Allender the life estate in the use and income as held by the eight surviving children of said Gladys Held, will cease, and the remainder interest, which is a fee simple interest, will be allocated in ten undivided shares of one- tenth (1/10) each in the eight surviving children of Gladys Held, the estate of Marjorie Held Grime, the deceased child of Gladys Held, and the estate of Malbrook Allender, the deceased child of Connie Ethel Allender"?

(2) Whether in the absence of any manifestation of intent in the will of Devening a per stirpes or per capita construction should be made of the devises to Devening's grandchildren?

(3) Whether the heirs of Malbrook Allender are entitled to a present interest in the real estate; and, correspondingly, whether Gladys' life estate pur autre vie can descend to her heirs?

(4) Whether the trial court erred in its decree of summary judgment?

The first issue for our consideration is whether the trial court properly construed the will of testator Devening when the court said, in its judgment:

". . . at the death of said Connie Ethel Allender the life estate in the use and income as held by the eight surviving children of said Gladys Held, will cease, and the remainder interest, which is a fee simple interest, will be allocated in ten undivided shares of one-tenth (1/10) each in the eight surviving children of Gladys Held, the estate of Marjorie Held Grime, the deceased child of Gladys Held, and the estate of Malbrook Allender, the deceased child of Connie Ethel Allender."

We determine that this is an incorrect interpretation of Devening's intent as that intent was expressed in his will. It is an established legal principle that in construing a will the governing factor is the intention of the testator as expressed and shown by the language thereof, and the primary purpose of such construction is to ascertain and give effect to such intention. This is true so long as such intention does not interfere with established rules of law. Trust of Paszotta v. Calumet National Bank (1961), 131 Ind.App. 604, 172 N.E.2d 904.

The relevant portions of Item 3 of Devening's will, in reference to the daughters' life estates, read as follows:

". . . the fee simple of asid (sic) real estate to be vested in my grandchildren, children of my two said daughters.

"On the death of either of my said daughters (Gladys and Connie) it is my will that the children of such deceased daughter living at the time of her death shall take and hold absolutely and in fee simple free and clear of any interest or claim of such surviving daughter the part or interest in said real estate held by their deceased mother as life tenant." (Our emphasis).

In the construction of a will the rule is stated that specific language generally controls that of a general nature. Weishaar et al. v. Burton et al. (1962), 132 Ind.App. 597, 179 N.E.2d 211; Porter v. Union Trust Co. (1915), 182 Ind. 637, 108 N.E. 117.

Item 3 of the will under consideration contains general language which indicates that the real estate is to vest in the grandchildren. Later in Item 3 specific language appears to limit the vesting. The specific language directs that at the death of either of testator's daughters the children of that...