Copeland v. Summers

• Citation: 35 N.E. 514,138 Ind. 219
• Decision Date: 27 November 1893
• Docket Number: 16,399
• Parties: Copeland, Executor, et al. v. Summers et al
• Court: Supreme Court of Indiana

35 N.E. 514

138 Ind. 219

Copeland, Executor, et al. v. Summers et al

16,399

Supreme Court of Indiana

November 27, 1893

Reported at: 138 Ind. 219 at 226.

From the Shelby Circuit Court.

Judgment affirmed.

E. K Adams, J. T. Carter, K. M. Hord and T. B. Adams, for appellants.

B. F Love, H. C. Morrison, O. J. Glessner and L. F. Wilson, for appellees.

Coffey, J. Hackney, J., took no part in the decision of this cause.

OPINION

Coffey, J.

On the 4th day of October, 1880, Milton L. Copeland, Sr., executed to Milton L. Copeland, Jr., his son, a warranty deed to one hundred and sixty acres of land in Shelby county, Indiana. At the time of executing the deed the grantor took from the grantee a written contract, by the terms of which it was stipulated that the grantee, in consideration of the conveyance, should pay the grantor the sum of one hundred and twelve dollars and fifty cents on the 1st day of August of each year, and a like sum on the 25th day of December of each year during the life of the grantor. The contract also gave to the grantor the right to take fire wood from the land, and the privilege of taking such fruit as he might need for his own use.

After these provisions and stipulations, the contract proceeds as follows: "And the said Milton L. Copeland, Jr., further agrees to pay George M. Smith, at the death of the said Milton L. Copeland, Sr., the sum of $ 1,000. Said sum to draw interest at the rate of six per cent. per annum after the death of said Milton L. Copeland, Sr., until paid, and the further sum of $ 1,000 to George T. Summers, payable at the decease of said Milton L. Copeland, Sr., and to draw interest as in the case of George M. Smith last above mentioned, and the further sum of $ 500 upon the death of said Milton L. Copeland, Sr., to Eliza C. Summers, if she be then living, and if dead to her children, except George T. Summers, said sum to draw interest at the rate, and in the manner as set out above, and for the purpose of securing the payment of the several amounts above set out to the persons to whom said amounts are payable. Said Milton L. Copeland, Jr., hereby mortgages and warrants, and creates a charge upon all the above and foregoing described real estate."

At the time of executing this deed and contract, Milton L. Copeland also executed his will. By the first clause of the will he devises to George M. Smith, who is his grandson, certain described land in Howard county, Indiana, after which the will contains the following: "I also devise and bequeath the sum of $ 1,000 to said grandson to be paid to by my son Milton L. Copeland, Jr., or from said son collected by my executor and paid to him."

By the second clause of the will, he bequeaths to his grandson George T. Summers, the sum of $ 1,000 when he arrives at the age of twenty-one years, payable by his son Milton L. Copeland, Jr., or from him collected by the executor and paid over. By the third clause he gives to Eliza C. Summers the sum of $ 500, payable by his son Milton L. Copeland, Jr. The fifth clause of the will is as follows: "I make no provision for my son Milton L. Copeland, Jr., herein, and desire that he shall take no part of my estate, by reason of a deed and advancement to him this day made of 160 acres of land in Shelby county, Indiana, known as my home farm. Such an advancement being of a greater value than an equal interest in my estate with my other children, and said son does this day execute to me his obligation, among other things providing that the sums as bequeathed in sections 1, 2, 3, shall be by him paid as herein provided as the consideration for said above mentioned excess, said sums to be so paid have been made a charge upon said land."

The contract above referred to was delivered to Milton L. Copeland, Sr., at the time of its execution, but was never delivered to either George M. Smith, George T. Summers or Eliza C. Summers. George T. Summers at its date was a minor.

Upon the death of Milton L. Copeland, Sr., the appellees Eliza C. Summers and George T. Summers, assuming that they had a right to recover on the contract involved in this suit, as upon a contract made for their benefit, instituted suit in the Shelby circuit thereon against Milton L. Copeland, Jr., and others who were alleged to claim an interest in the contract, for that purpose.

Milton L. Copeland, Jr., appeared to the action, confessed the indebtedness, alleged that there were conflicting claims to the funds, and asked that the parties asserting claims might be required to interplead. He paid the money due into court, and thereupon an order was entered requiring the parties claiming the money to interplead, and he was discharged.

He being executor of the will of Milton L. Copeland, Sr., was made a party to the action as such, and by proper pleading asserted a claim to the money on the ground that it belonged to the estate represented by him, and was necessary to pay the debts due from such estate. The pleadings in the cause, after the order to interplead, were so framed as to present the question as to whether this fund belongs to the estate of Milton L. Copeland, deceased, or whether it is the property of the appellees, Eliza C. Summers and George T. Summers.

It is contended by the appellants, as we understand their briefs filed in the case, that inasmuch as the deed, contract, and will, above referred to, were all executed at the same time, and because the deed and contract are referred to in the will, the transaction is to be regarded as a testamentary disposition of the property of Milton L. Copeland, Sr., and that the title and control did not pass from him prior to his death, and, therefore, it belongs to his estate subject to be used in the payment of debts and the expenses of settling...