Conover v. Cade
| Decision Date | 28 March 1916 |
| Docket Number | No. 22805.,22805. |
| Parties | CONOVER v. CADE et al. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Fountain County; Isaac Schoonover, Judge.
Action by Martha J. Conover against Clifford A. Cade and others. Judgment for defendants, and plaintiff appeals. Transferred from Appellate Court under section 1405, Burns' Ann. St. 1914. Affirmed.Addison C. Harris, of Indianapolis, and Crane & McCabe, of Crawfordsville, for appellant. Lucas Nebeker, of Covington, for appellees.
Action by appellant, Martha J. Conover, to quiet title, involving the construction of the will of Samuel Cade. The testator owned 3,095 acres of land in Fountain county, of the value of $250,000, and on or before May 18, 1904, commenced the preparation of his will, which was finished and signed May 25, 1906. The instrument is in his own handwriting. He died in 1908. When the will was written, and at his death, he had a wife, Eliza J., and six children, Martha J. Conover, Clifford A. and David S. Cade, Frances O. Glasscock, Mary F. Nixon, and Bessie L. Hurst, all of whom were married and had children, except Mrs. Conover and Clifford Cade. The latter was married in 1903, when 26 years of age, but never had any child. Mrs. Conover was married in 1896, at the age of 34 years, and has had no child. The husbands and wives of the children survived the testator. Frances O. Glasscock died before the bringing of this action. Testator had no descendants except said children and grandchildren. He left a personal estate of the value of $45,000.
So much of the will as is material here reads as follows:
“*** I Samuel Cade *** while I have the ability to divide my land and personal property between my wife and Children-I know that I know more about my real estate than any Judge or Commissioner that might be appointed to divide my land-and I want it distinctly understood that I want my property to go to my children and then when they are done with it- to go to their Children if any they may have- and if thare is any that have no children then their Share goes to my other Children or their Children provided they should be dead-eaqualy or Share and Share a like-and it is understood that my wife holds the one third intrust in all this land-I have only disposed of my two thirds intrust-I want it understood by all partys interested in my will that none of it this property gets to out Side people that have no connections to my Self or Blood relation to my Children.
No. 2. It is my will and wish that my Beloved Wife E. J. Cade have for her Share one third of my land to be her own in fee Simple and to dispose of as She Sees propper-but my wish is that She holds for her benefit-and when She is done with it to go to the Childer that has the other two thirds of the land that I give them I dont make it as compulsory on her to do as I wish-I can trust her to do as She pleases about it-and when I get land divided I will at the bottom of this will devise the personable property as I wish-
No. 3. to Mary F. Nixon I give [description of real estate], containing eighty (80) acres- This the land bought of W. L. D. Cochran-the other land bought of David & Jane Pattons Children (240) acres also the lots & house in Veedersburg where Mr. & Mrs Nixon now lives Numbered as Block 42-43-44-45-58-59-60-61-
Mary F. Nixon has had an advancement of one thousand dollars (1000) September 9th 1879 also Nov. 2 1883 fifteen Hundred dollars- (1500)-and-about October 1883-loaned Mary F. Nixon one thousand dollars & took hur note for it-and it was not paid & I delivered it to Marshall Nixon in about three Years and in 1891, July 10 went Mary F. Nixon Security for $1000.00 dollars to Farmers & Merchants Bank of Covington, & had it to pay-& it took $1150.00 to pay it.
I expect to deed the residence and lots described in this bequest Soon this May 18- 1904 and will say that this property has cost me-in 1883-it cost me about $3600.00 dollars and in taxes per haps $1500.00-part of Cemetery is located on this land at about the middle of S. W. fourth Sec. (23) and at South Side of said land a little east of the Center and it is Reserved for that purpos-have deeded the Nixon property to Mary F. Nixon in the fall of 1904-this is all the real estate that I expect to give her-
No. 4. to Francis O Glasscock I give [description]. This is the Alexander Bingham farm 160 acres except right of way of the Clover Leaf R. R. also [description]. This is the Lucy L. Pike land 160 acres boath making the South half of said Section.
Francis O Glasscock has had an advancement September the 9 1879-of five hundred (500) dollars also May 22-1880-five hundred (500) dollars-also-balance on note do not know the date of Henry Glasscock's amount (500) five hundred dollars-and it is my will that Francis O Glasscock is to have the land that I own at Yeddo Provided I do not Sel it and if I do Sel it the money I get for it or at least thirty five hundred dollars-She is to have in place of said land.
No. 5. to Martha J. Conover I give [description of tracts of land containing 453 acres].
No. 6. to David Samuel Cade I give [description of tracts containing 650 acres], and it is my will that my Son D. S. Cade keeps a way to get to the Grave Yard from the South east corner of the Bottom field along next to the hill whare there is a private road now leading to the Cemetery-or from his hous at the road as the private road goes now-and it is my will that he gives Mary F. Nixon 25 feet in width from the corner of the South west fourth Sec. (23) twenty three South east corner of said land -this Strip to cum off North end of West half of north east fourth Sec. 26 to connect with the Public Road south & west of Pattons Brick house.
No. 7. to Bessie L. Hurst I give [description of various tracts of land].
No. 8. to my Son Clifford A Cade I give [description of 672 acres].
No. 9. and it further understood that my property divided in this will will be left as I have divided it all of the Children have had money or the use of land to farm and have got all they raised on Said land except Bessie and She has not had but little money more than the other Children and has had no use of land like D. S. Cade Mattie Conover & Clifford Cade-Clifford has not but two years-So far-D. S. has had the use of land and money to build house & barn besides and Mattie Conover has had money to build house & barn D. S. has had (11) years and Mattie about (9) years use of land all free of rent or taxes-the Children has all been eaquell in Christmas-from 1899-6 years they have had-$1200.00 each year for six years making $7200.00 except Clifford's wife and that takes off $300.00 and before 1898-perhaps about $1500.00 all told-Clifford and Bessie has had practikly the Same-as Bessie has had a little money and Clifford has had the use land for five years-if I should die-I will expect my wife to do right about the personal property-and it is distinctly understood that my money and valuables be entailed Same as the realty.
No. 10. and it is my will and wish that my wife be appointed executor of this will-and without bond-and that my son Clifford A Cade to help and advise his Mother in the Setling up & dividing the property.
and it is my will and wish that thare be five hundred dollars taking out of my money and giving to my Son David Samuel Cade to be kept by him-and for him to pay four per cent on the same-or twenty dollars pr year for the use of the money-and the twenty dollars to be expended on the Cemetery Situated on his land and Mary F. Nixons or the Cemetery known as the Cade & Patton Cemetery for to keep it cleaned off & kept fenced as a permanent endowment for to keep the Cemetery in good condition -this all at present if not I may add a codicil.
No. 11. I want it distinctly understood that my real estate or land does not get away from my children and to be entailed So that when my Children are done with it that it goes to their Children & if any of my Children die without Children then this property that I mostly made & Saved Shall go to my other Children or to their Children Personal & real as I have expected to entail my property-and I do not want it to get away from my heirs to outside prtys that never cared for me or expected anything from me or mine-now as I have had some experience in that line in right in this neighborhood Uncle Samuel Campbell Property all got away-real and Personal and went to the Malroy people moastly Mr. Rin Henry M. Bacon's Family and to William H. Malroys Family that never made a dollar of his property-and an other Mans Property part of it got away he was a man that I was intimately acquainted with as I lived thirty two years of my first years but a little over half mile from his home and herd him talk a bout his Property how he was going to divide and helped to make a will for him and went to
No. 11 continued. Covington on Sunday morning to get a lawyer to write a will for him and Blank deeds to fill out and he wanted Atty Charles Tyler to do the work for him but he would not come and I got Wm. H. Malroy instead and he done the writing & I witnessed it and this was in May 1858
Now I will say something about the advancements made Mary F. Nixon has had and is in the page that that I give her the land & the Veedersburg home Property if $4650.00 in cash and the house and lots cost me in 1883 $3600.00 and in taxes I paid on the property about $1500.00 and loaned Mary F. Nixon to pay for paving Second St-$1000.00 and got Back $500.00 and then loaned him $300.00 and he never paid it- making it $8000.00 all $9400.00.
Francis O. Glassock has $1500.00 and I have give Bessie L. Hurst March 1906 $3000.00
No. 11 Continued. and I have made numeras gifts in money to my Children but as thare is not much difference will not make any Statement
I expect to build Bessie L Hurst a house and barn to Cost a bout three thousand dollars on the north Side of the road on the hill beyound the end of the...
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