Dawson v. McKee

• Decision Date: 11 January 1954
• Docket Number: No. 18464,18464
• Citation: 124 Ind.App. 233,116 N.E.2d 538
• Parties: DAWSON v. McKEE et al.
• Court: Indiana Appellate Court

Page 538

116 N.E.2d 538

124 Ind.App. 233

DAWSON v. McKEE et al.

No. 18464.

Appellate Court of Indiana, In Banc.

Jan. 11, 1954.

Cecil Tague, Sr., Brookville, Louis Lambert, Rushville, Frank I. Hamilton, Greensburg, for appellant.

Chauncey W. Duncan, Rushville, Albert P. Heeb, Connersville, for appellees.

KENDALL, Presiding Judge.

The appellant by this appeal challenges the construction placed by the trial court upon the last will and testament of John W. Rhodes, deceased. By appellant's amended and supplemental complaints, he prayed for a construction of the will and a determination that he be entitled to the bequest designated in Item 2 thereof. Appropriate answers were filed by appellees, together with their cross-complaint to quiet title. Appellee John F. McKee, Jr. filed separate cross-complaint to quiet title to the real estate based upon a tax-title deed. A request for special findings of facts and conclusions of law was made. Trial had by the court which rendered special findings of facts and stated conclusions of law in favor of the appellees, Georgia McKee, John F. McKee, Jr. and Kathleen Laughlin. Judgment was rendered in favor of the appellees named to the effect that they were owners in fee simple of the real estate described in the pleadings filed by appellant; that the claim of the appellant, John T. Dawson, was without right and unfounded; that appellees recover costs and that appellant Dawson take nothing in either paragraph of his complaint.

The record discloses that on and prior to June 2, 1885, John W. Rhodes was the owner in fee simple of certain real estate containing sixty-five acres; that on June 2, 1885, John W. Rhodes executed his last will and testament, the following items of which are pertinent to the issues involved, to wit:

'Item 2. I give, grant and bequeath all the property real and personal of which I may die seized, the real estate consisting of the following described lands in Rush County, Indiana, to-wit: The N.W. 1/4 of N.E. 1/4 of Sec. 20-13-11, also, 25 acres in the S.W. corner of S.E. 1/4 of Sec. 17-13-11 of lands sold at Brookville, Indiana, with all the appurtenances thereunto belonging to my grandchildren, John W. Brittain and Claude Dawson, in equal shares upon the following conditions Viz.: If either of my grandchildren above named in this will should die without leaving children or their descendants surviving him, his share shall go to the survivor of my said grandchildren above named and in case both of my said grandchildren should die without leaving children surviving them or either of them, the lands above described shall go to John W. Coon, my nephew in fee simple. But if either of my said grandchildren should die leaving a child or children or their descendants surviving him his said share shall go to such child or children in fee simple forever. It is my will and meaning that it is only in case that both of my above named grandchildren should die without leaving a child or children or their descendants surviving them that my nephew, John W. Coon is to take any of my estate.

'Item 3. It is further my will that whatever money I may have on hand or at interest at the time of my decease shall be kept at interest by my executor and the interest accruing thereon expended by him in keeping up repairs on the real estate described in Item 2 of this will or so much of said interest as may be needed for that purpose until my said grandchildren above mentioned shall respectively reach the age of 21 years, when the respective moiety of each of them shall be paid over to him by my executor and that all other personal property shall be equally divided between my said grandchildren immediately after my decease.

'Item 4. It is further my will that in case my daughter, Missouri E. McPherson, shall again become a widow and should stand in need from sickness or the inability of her said children other than those mentioned in this will, that she shall have the sum of $50 per year from my grandchildren mentioned and provided for in this will and that payment of said sum shall be a charge on the lands described in the 2nd Item of this will.'

The said John W. Rhodes died in 1889 and thereafter his will was admitted to probate; that Claude Dawson, the grandson of decedent mentioned in Item 2 survived the testator and died November 15, 1929, leaving this appellant as a surviving child and who is a great-grandson of the said John W. Rhodes; that John W. Brittain, likewise a grandson of testator, died July 1, 1949, and left no issue surviving him; that Missouri E. McPherson, named in Item 4 of the will, was the mother of said grandsons mentioned in Item 2.

After the death of John W. Rhodes, the grandsons, John W. Brittain and Claude Dawson, each being single, executed their separate quitclaim deeds conveying their interest of the real estate described in Item 2 to their mother, Missouri E. McPherson, which deeds were duly recorded; that thereafter, Missouri E. McPherson died and her heirs, including the two grandsons mentioned in Item 2 executed a warranty deed conveying said tract of real estate to one Hayes Beaver, which deed was recorded. Subsequently, on September 16, 1920, Wayne Beaver and Dora Beaver executed their warranty deed conveying the same tract of real estate to John F. McKee. Subsequently, the said McKee and wife executed certain mortgages on said real estate and that the legal representatives of the lending institutions were made party defendants and filed appropriate answers. By the second paragraph of appellant's complaint, he sought an accounting as to the rents and profits received by appellees during the period of years that they and their predecessors in ownership had owned the farm.

Motion for new trial was filed alleging that the findings of the court were not sustained by sufficient evidence and were contrary to law. The assignment of errors are, (a) That the court erred in overruling appellant's motion for new trial; (b) The court erred in its conclusions of law one, two and three.

The appellant concedes that the sufficiency of the evidence contained in the first specification of motion for new trial is not considered in this appeal. Therefore, the only specification of the appellant's motion for new trial before us is whether or not the decision of the trial court is contrary to law and whether the court erred in its conclusions of law numbers one, two and three.

The trial court in its conclusions of law number one found that the law was with the appellees and cross-complainants herein, Georgia McKee, John F. McKee, Jr. and Kathleen Laughlin. By conclusions of law number two, the court concluded:

'That upon construction of the Last Will and Testament of John W. Rhodes, deceased, which is set out in Finding of Fact No. 2 of the Court's Finding of Fact herein, and the true and legal meaning, intent and effect of the provisions of Item 2 of said Last Will and Testament reading as follows, to-wit: (Here court copies Item 2 of the Will.)

'That plaintiff, John T. Dawson, has no right, title or interest in the real estate, or any part thereof, described in said Item No. 2 of said Last Will and Testament of John W. Rhodes, deceased that said John W. Rhodes, deceased, by his Last Will and Testament, herein mentioned and referred to, and a copy of which is set out in Item No. 2 of the Findings of Fact by the Court herein, devised, gave, granted and bequeathed to John W. Brittain and Claud Dawson, legatees and beneficiaries mentioned therein, in equal shares, in fee simple, the lands mentioned and described in said Item No. 2 of said Last Will and Testament of said John W. Rhodes, deceased, situated in Rush County, Indiana, and described as follows: * * *'

That by conclusions of law number three, the court concluded that the appellees herein and cross-complainants were the owners in fee simple of said real estate described in Item 2 and that they were entitled to have their title quieted thereto.

It is the appellees' theory:

'That the Will of John W. Rhodes, deceased, is uncertain and ambiguous as to the time when the death of John W. Brittain and Claud Dawson, grandchildren of the testator, John W....