From
Marion Probate Court; Mahlon E. Bash, Judge.
Action
by Dale J. Crittenberger, auditor of the State of Indiana
against the State Savings and Trust Company and others. From
a judgment for the defendants, the plaintiff appeals.
Affirmed.
OPINION
Willoughby, J.
This is
an appeal from the probate court of Marion county, Indiana,
in the matter of the assessment of inheritance tax on the
estate of William L. Higgins, deceased. On motion and request
of the auditor of the State of Indiana the
court made a special finding of facts, and stated conclusions
of law thereon. The special finding of facts is as follows:
(1)
That William L. Higgins, a resident of Marion county,
Indiana, died testate on December 3, 1914; that his last will
and testament was duly admitted to probate in the probate
court of said county on December 7, 1914, and letters
testamentary were thereupon issued to State Savings and Trust
Company; that said will is still in full force and effect;
that said will is as follows:
"I, William L. Higgins, of Marion county and state of
Indiana being of sound and disposing mind do make and declare
this to be my last will and testament, hereby revoking all
former wills by me made.
"1. I give and bequeath all my property both real and
personal of every kind and character to the State Savings and
Trust Company, of Marion county, Indiana, as trustee, to
hold, administer and dispose of the same as hereinafter
directed.
"2. I hereby direct that said Trust Company, as
trustees, shall pay out of my estate all my just debts and
funeral expenses and place above my last resting place a
suitable monument which monument shall not exceed in cost six
hundred dollars.
"3. I direct that the said Trust Company, as trustee,
shall pay out of my estate the sum of two thousand dollars to
each of the following named children of my brother Julius W.
Pinnell; to Mary Pinnell Graham, two thousand dollars; to
Armel W. Pinnell, two thousand dollars; to
Victor Pinnell, two thousand dollars; to Herbert Pinnell two
thousand dollars; and to George Barton Winkler two thousand
dollars; to Barbara Winkler two thousand dollars. The last
two named being the grandchildren of my brother Barton S.
Higgins. The said sums to be paid to each of said children
when they respectively shall become of the age of twenty-five
years; and in case any one of said devisees shall die leaving
neither widow nor child then the portion of said devisee
shall be divided equally among the survivors of said named
devisees; and in case of any one of said devisees shall die
before receiving this bequest leaving widow or children of
his or her body then the bequest intended for the said
deceased shall be paid to said widow and children at the date
said deceased would have arrived at the age of twenty-five
years to be divided among said widow and children in the
portions that estates are divided among heirs under the
statutes of Indiana.
"4. I direct that said Trust Company, as trustee, shall
pay out of my estate to Mrs. Henry Dunham five hundred
dollars, and to Mrs. Pearl Evans, twenty-five hundred
dollars, and shall deliver to said Mrs. Pearl Evans all my
music and musical books and musical papers and piano.
"5. I direct that said Trust Company, as trustee, shall
pay to Lebanon Cemetery Company, of Lebanon, Boone county,
Indiana, one hundred fifty dollars to be received by said
Cemetery Company and placed by it upon interest, the net
proceeds thereof to be used each year toward the preservation
of the graves and monuments of James H.
Pinnell, Avalena F. Pinnell, J. Buren Higgins, Lelia A.
Higgins, and of my body, if there interred, in the cemetery
supervised by said company, but said company shall have no
power to use any part of the principal.
"6. I hereby direct that said Trust Company, as trustee,
shall create a fund known as the Buren Higgens Fund in memory
of my deceased son Buren; said fund to be created,
administered and disposed of as follows: The said fund shall
be constituted of the net proceeds of my real estate at No.
310 North Delaware Street, in the city of Indianapolis, said
county, more particularly described as follows: 'The
north half of lot No. five (5), Block twenty-four (24), in
the city of Indianapolis, Marion county, Indiana.'
"The said Trust Company, as trustee, shall always
maintain upon the said real estate a building of respectable
appearance to be devoted to lawful purposes, which building
shall always bear the name 'The Buren' in memory of
my son, which name shall be suitably displayed on said
building, but no part of my estate other than the income from
said last described real estate shall be used for the
erection or maintenance of such building. Said Trust Company,
as trustee, shall keep the taxes, insurance, interest on any
loan on said property, repairs and maintenance of said
building paid from the income therefrom and the balance of
said income shall constitute said fund. Said fund shall be
disbursed by said trustee on the order of an administrative
board of three, as such
board may require, which board shall be constituted as
follows: I hereby elect, constitute and
appoint the following persons as the initiative members of
said board: Julius W. Pinnell and Matthias L. Haines of the
city of Indianapolis, Marion county, Indiana, and Frank
Coombs of Boone county, Indiana. The said board shall receive
the said fund and expend the same in such manner and at such
times in aiding worthy young men in procuring such collegiate
educations either technical or literary as in their judgment,
or in the judgment of the majority of them may seem
advisable. Whenever any member or members of said
administrative board shall die, be removed or resign from any
cause then the surviving member or members of said board
shall choose some suitable male citizen to fill his or their
places, and by such method make said board perpetual.
"7. I hereby direct that said Trust Company, as trustee,
shall keep all the remainder of my estate, preserving the
same in such form as shall be to the best interest of my
estate and procure the greatest revenue in the judgment of
said Trust Company, and after paying the expenses of
preserving and administering the same the said trustee shall
disburse the proceeds of said estate in the aid and support
of aged indigent persons, male and female, residents of the
state of Indiana, as may be directed by the board of
administration hereinafter designated or by the majority of
them. Provided, further, that from the final fund out of
which distribution as aforesaid shall be made to aged
indigent persons, I direct said trustee to pay unto the
Little Sisters of the Poor, in Indianapolis, the sum of fifty
dollars per annum for twenty-five years. I
hereby make, constitute and appoint Julius W. Pinnell,
Matthias L. Haines, John H. Holliday and Charles Latham, of
said Marion county, and Frank Coombs, of Boone county,
Indiana, a board of administration to supervise the use and
expenditure of the funds herein bequeathed to the use of the
aged and indigent. Should any member or members of said board
die, be removed, or resign for any cause, then the survivors
shall choose some male citizen, or citizens, to fill his or
their places, and in such manner make the said board
perpetual. The said board shall determine to whom aid may be
given from the said fund, and the extent and character of
such aid, but they shall not have any power to give any
portion of said fund toward the erection, or maintenance of
any building or property to be used as a home for the aged
except that they may, and I hereby direct that they shall,
select a good room in some home for the aged in the city of
Indianapolis, furnish, decorate, and keep furnished and
decorated said room by and with the consent of the directors
or managers of such home, giving the same room the name
'Avalena F. Pinnell Room' in memory of my dear
mother. Such board may use their judgment in giving aid to
aged persons either in homes that may be provided for them,
or in place or manner such board may determine, within the
state of Indiana.
"Witness my hand and seal November 19th, 1914.
"William L. Higgins.
"The foregoing instrument was signed, sealed and acknowledged by William L. Higgins as his last will
and testament in our presence, and we at his request and in
his presence and in the presence of each other signed and
subscribed the same as witnesses, all at Indianapolis, on the
19th day of November, 1914.
"Frank Geiger,
"Edna P. Wyatt."
(2)
That the total gross value of said estate real and personal
is $ 203,947.47; that indebtedness and costs of
administration amount to $ 80,940.05; that the total net
value of said estate real and personal is $ 123,007.42. (3)
That the persons named in item 3 of the will are related to
said testator as follows: Mary Pinnell Graham, niece; Armel
W. Pinnell, nephew; Victor Pinnell, nephew; Herbert Pinnell
nephew; George Barton Winkler, great-nephew; and Barbara
Winkler, great-niece; that Mrs. Henry Dunham and Mrs. Pearl
Evans, who are legatees by item 4 of said will, are not
related by blood to said testator. (4) The State Savings and
Trust Company is a corporation organized under and by virtue
of the laws of the State of Indiana providing for the
incorporation of loan, trust and safe deposit companies. (5)
That the value of the gift, devise and bequest under item 6
of said will, designated as "The Buren Fund," is $
53,500. (6) That the value of the gift,...
