Crawfordsville Trust Co. v. Elston Bank & Trust Co.
| Decision Date | 04 March 1940 |
| Docket Number | 27333. |
| Citation | 25 N.E.2d 626,216 Ind. 596 |
| Court | Indiana Supreme Court |
| Parties | CRAWFORDSVILLE TRUST CO. et al. v. ELSTON BANK & TRUST CO. et al. |
Appeal from Montgomery Circuit Court; Howard L. Hancock, Special judge.
W J. Sprow and Harding & Harding, all of Crawfordsville for appellants.
Foley & Foley, Walter W. Spencer, John B. Newlin, Walter N Haney, Arthur McGaughey, Howard O. Sigmond, and Ristine & Ristine, all of Crawfordsville, and Louis B. Ewbank, of Indianapolis, for appellees.
George T. Durham, a resident of Montgomery County, Indiana, died testate, February 27, 1937, leaving as his only heir his widow, Sarah E. Durham. At the time of his death he was the owner of personal property of the approximate value of $242,000 and more than eleven hundred acres of land. His last will and testament, after providing for the payment of debts, contained the following provisions:
'After the above provision is complied with, I will, bequeath and devise all the balance of my property of every kind and whereever situated, to my beloved wife, Sarah E. Durham for and during her natural life, with power and authority to dispose of, sell, convey or make gift of and to use and expend the same or any part of it in any way she sees fit.
'It is not my intention to will, bequeath and devise said property and estate to my said wife absolutely and in fee simple, but simply to authorize and empower her to use the same and dispose of the same while she has it during her life time if she sees fit to do so. In the event my said wife shall not dispose of all of said property in her life time in any of the methods set out above, then, what is left of the same at her death shall not descent to her heirs, nor under any will of hers, but the same shall be disposed of in the following manner:'
The will further provided that after the death of his wife all the property remaining should be converted into cash and that his executor from such fund should erect a monument, pay to Babe Cunningham $1,000, and then distribute the balance of the fund remaining as follows:
'The portion going to said Methodist Episcopal Church above, I will shall be expended by the trustees or governing officers of said church in installing chimes on the property of said church in the city of Crawfordsville, Indiana, in memory of the Durham family, and the balance going to said church, I leave to be expended by the trustees or governing body of said church in any manner selected by the said officers, so that the people of Crawfordsville, Indiana and of Montgomery County, said state, shall receive the most benefit, in the discretion of said trustees or governing body.'
The will then provided that in the event of the death of his wife prior to his death, or that they should die simultaneously, the executor should reduce all of the property to cash and, after the payment of the bequest to said Cunningham, should divide the balance of the fund equally between said nospital and said church 'to be used by said two last named legatees as suggested and willed above.'
On June 15, 1937, the said Sarah E. Durham executed her last will and testament, which was duly proved and admitted to probate on July 16, by the Montgomery Circuit Court. By this will she disposed of personal property of the value of more than $75,000 of which she was the absolute owner, and certain real estate which she owned in fee, and also purported to dispose of some of the assets, both real and personal, of the estate of George T. Durham. On July 3, 1937, she signed, acknowledged and delivered to the Crawfordsville Trust Company of Crawfordsville, Indiana, a written instrument denominated a 'trust deed', which deed was also signed and acknowledged by the president and secretary of the Crawfordsville Trust Company, and was duly recorded July 15, 1937. This deed purported to convey all of the real estate which she owned, all that her husband had owned and also some of the personal property of his estate. On the same date she also signed and delivered to the Crawfordsville Trust Company a written instrument which purported to be an assignment of certain of the personal property of the estate of George T. Durham. One copy of this assignment was delivered to Elston Bank and Trust Company, Executor of the will of George T. Durham, on July 8, 1937, by the secretary of The Crawfordsville Trust Company. By said trust deed and assignment the said Sarah E. Durham purported to convey and transfer to said Crawfordsville Trust Company, as trustee, all of the property described in said deed and assignment, which property was to be held by said trust company, as trustee, for the benefit of said Sarah E. Durham during her lifetime and after her death to be held, used and distributed according to the provisions of said deed.
Said Sarah E. Durham died July 15, 1937. After her death the residuary legatees named in the will of her husband, the beneficiaries under her will, and The Crawfordsville Trust Company, as trustee under the said trust deed and assignment, all made adverse and conflicting claims to the assets of the estate of George T. Durham, which were all still in the possession of his executor. Said executor thereupon filed this action for the construction of the will of George T. Durham, and to determine and adjudicate the rights and interests of the various parties in the assets of his estate.
The trial court found the facts specially, stated his conclusions of law thereon and entered judgment in accordance therewith. It was adjudged and decreed that the will of George T. Durham gave to his wife all of his property for and during her natural life with a limited power of disposition, which power she failed to exercise during her lifetime; that the Montgomery County Culver Union Hospital and the First Methodist Episcopal Church, both of Crawfordsville, Indiana, as residuary legatees, should take the balance of the assets remaining at her death after the payment of the specific bequests; and that all of the parties to said action, who were claiming any interest in any capacity under either the will, the trust deed or the assignment of Sarah E. Durham, should be and were enjoined and forbidden to set up, claim or in any manner assert any right, title or interest in or to any of the said property that was owned by George T. Durham at the time of his death under or by virtue of said will of said Sarah E. Durham, her said trust deed or her said purported assignment.
The alleged errors assigned herein are that the court erred in his said conclusions of law and in overruling the motion for a new trial.
The facts in this case were such as to support an action by the executor of the estate of George T. Durham to construe the decedent's will in order to determine and adjudge the rights and interests of the various parties claiming thereunder and the duties of said executor as to said assets. Partner v. Citizens' Loan, etc., Co., 1904, 163 Ind. 303, 71 N.E. 894; § 3-1102, Burns', 1933; § 439, Baldwin's, 1934.
The first contention of appellants as to the construction of said will is that the widow, by said will, took an absolute title in the property of her deceased husband to the exclusion of the residuary legatees.
In considering the construction of the will all parts thereof must be construed together to form, if possible, one consistent whole. If, by such consideration, the intention of the testator is apparent his intention must prevail unless it be in conflict with established rules of law. Grise, Adm'r, v. Weiss, Adm'r, 1937, 213 Ind. 3, 11 N.E.2d 146. In the case at bar the testator said in his will that he gave the property in question to his wife 'for and during her natural life' and that it was not his intention 'to will, bequeath and devise said property and estate to my said wife absolutely and in fee simple.' The will also provided that upon the death of the wife the executor should convert 'all of said remaining property' into cash and make distribution thereof pursuant to the terms of the will. It is perfectly clear from the language of said will that it was not the intention of the testator that his wife should have the absolute title to said property. Nor does a construction of the will which gives the wife only a life estate with a limited power of disposition violate any rule of positive law.
Appellants earnestly insist that the power of disposition given to the wife was an absolute power and that, therefore, the will must be construed as giving the widow the fee to all of testator's estate. Van Gorder v. Smith, 1885, 99 Ind. 404, is one of the principal cases relied on by appellants. In that case, however, the will gave the property to the widow 'to be held, used and controlled by her as long as she may live, and to be disposed of by her by will or otherwise at her death,' and there was no attempt by the testator to dispose of a remainder. The will...
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