Ditton v. Hart

• Decision Date: 02 February 1911
• Docket Number: No. 21,464.,21,464.
• Citation: Ditton v. Hart , 175 Ind. 181, 93 N.E. 961 (Ind. 1911)
• Parties: DITTON et al. v. HART et al.
• Court: Indiana Supreme Court

175 Ind. 181

93 N.E. 961

DITTON et al.

v.HART et al.

No. 21,464.

Supreme Court of Indiana.

Feb. 2, 1911.

Appeal from Circuit Court, Warren County; J. T. Saunderson, Judge.

Action by Abigail H. Hart and others against Minerva H. Ditton and others.From a judgment for plaintiffs, defendants appeal.Reversed, with directions to sustain defendants' motion for a new trial, and for further proceedings.

Items 7 and 9 of the will were as follows:

“Item 7.All the rest of my real estate *** is hereby willed, devised and bequeathed to my four daughters, Minnie Ditton, Abigail Hart, Elizabeth Bond and Martha Jewell, share and share alike, during their natural lives; but should any of my daughters die leaving no children, then the share hereby willed to such daughter shall go to the sisters of said deceased daughter, share and share alike, during their natural lives, but if any of my said daughters should die before I depart this life leaving children, then the share hereby willed to said daughter during her natural life shall go in fee simple to the joint trustees for said children, hereinafter named by me, and be subject to the terms of the trust created for the benefit of the children of my daughters.”

“Item 9.Believing that the life estate in the lands willed by me to my four daughters in ItemNo. 7 of this my will, will furnish income of such an amount as will amply provide for the support, maintenance, care and comfort of my said daughters during their natural lives, and also for the support and education of their children, and being desirous of providing the children of my daughters with what I regard as a safe and sure source of revenue after the death of the mothers, I hereby appoint William C. Ditton, husband of my daughter Minnie Ditton and the LaFayette Loan & Trust Company joint trustees for the children of said daughter Minnie Ditton; and George Hart, husband of my daughter Abigail Hart, and the LaFayette Loan & Trust Company joint trustees for the children of my daughter Abigail Hart; and Charles J. Jewell, husband of my daughter Martha Jewell, and the LaFayette Loan & Trust Company joint Trustees for the children of my daughter Martha Jewell; and John L. Bond, husband of my daughter Elizabeth Bond, and the LaFayette Loan & Trust Company joint Trustees for the children of my daughter Elizabeth Bond; and I hereby will, devise and bequeath to the said joint Trustees of the children of each of said daughters respectively the fee simple of the land which was willed by me to my four daughters during their natural lives in ItemNo. 7, and to be set off to them in severalty under the provisions set out in ItemNo. 8.But should any of my said daughters die leaving no children, the share willed to the joint Trustees for her children shall go in fee simple to the joint Trustees for the children of her sisters, share and share alike to each set of joint Trustees, it being my will and intention that the share of any of my daughters who may die childless shall go to the children of her sisters, an equal share to the children of each sister per stirpes.Said joint Trustees shall receive the property herein devised to them under the following trust, viz: They shall, respectively, manage the property conveyed to them in a good, business-like manner, for the benefit of my daughters' children, and in such manner that it shall yield a good income; and after paying taxes, repairs, and the expenses of this trust, shall use the net income for the benefit of said grand children.

“As each of said grand children shall reach the age of twenty-one (21) years, the joint Trustees of such grand child shall convey the fee simple of such grand child's equal share of the property held in trust, and increment arising therefrom, to such grand child, and as to such grand child this trust shall then terminate.

“If any child of any of my daughters shall have reached the age of twenty-one (21) years before the mother's death, the share of such child shall immediately vest in him or her in fee simple, and be exempted from the provisions of this trust.

“In case of the death of either of the joint Trustees herein named, the surviving associate in the trust shall have all the powers, and be charged with all the duties, herein imposed upon such trustees jointly.”

Instructions 31, 32, and 34, requested, were as follows:

“No. 31.I instruct you that under the terms of the will the four daughters of Jane Hawkins took an estate in the real estate devised under clause 7 for and during the term of their natural lives, share and share alike, and that the joint trustees mentioned in said will took a fee simple in said real estate subject to the life estate in said daughters upon the trust mentioned therein for the children of said daughters.(Refused.)

“No. 32.I instruct you that under the terms of the will the children of the daughters take the real estate devised to them as a class, and that the estate which by the terms of the will is to vest in them at the age of 21 years is subject to change by an increase or diminution of its number in consequence of future births or deaths in said class.(Refused.)”

“No. 34.The court instructs the jury that the partition of the lands provided for in the will between the life tenants, the daughters of the testatrix, is required to be made on a fair and equitable basis as to value, and that in case a division is attempted, and any party to it deems it unfair and inequitable as to values, they have the right to appeal to the circuit court of the county in which the trust is pending, for it is a general rule of the law that the persons for whose benefit a trust is created may always proceed in the proper court to compel the fulfillment of the terms of the trust in accordance with its spirit and meaning, and in this case I instruct you that the Benton circuit court of Benton county, Ind., has full supervisory power and control of the trust created in the will of Jane Hawkins, and in case of any violation of the trustee of any of its duties under the will, said court has full power on a showing thereof to remove the trustee and appoint another, and generally to see to it that the trustee administers the trust without hostility to any party in interest and in a fair and equitable manner.(Refused.)”

Kumler & Gaylord, McCabe & McCabe, and Charles M. Snyder, for appellants.Stuart, Hammond & Simms, Fraser & Isham, Meade S. Hays, and W. B. Durborow, for appellees.

MONKS, J.

This action was brought by appellees against appellants to contest the will of Jane Hawkins, deceased, after probate, on alleged grounds that the testatrix was of unsound mind when the will was executed, that the will was procured by undue influence, and that the same was unduly executed.A trial of said cause resulted in a general verdict in favor of appellees, and over a motion for a new trial final judgment was rendered setting aside said will.The only errors assigned and not waived call in question the action of the court in overruling appellant's joint motion for a new trial.

It is insisted, however, by appellees that this appeal must be dismissed because the La Fayette Loan & Trust Company was made a defendant in the court below in its individual capacity, and is not named in that capacity as one of the appellants in this court, but is named as a partyappellant in the assignment of errors as the “executor of the last will and testament of Jane Hawkins, deceased, when it was not a partydefendant in that capacity in the court below.”It is true that said Loan & Trust Company was not named in the title of the complaint in this case as executor of said will, but the character in which any one is made a party must be determined from the allegations in the complaint, and not by its title.Marion Bond Co. v. Mexican, etc., Co., 160 Ind. 558, 563, 65 N. E. 748;Williams v. Dougherty, 37 Ind. App. 449, 77 N. E. 305;Funk v. Davis, 103 Ind. 281, 285, 286, 2 N. E. 739;Beers v. Shannon, 73 N. Y. 292, 297;Tate v. Shackelford, 24 Ala. 510, 60 Am. Dec. 488.It clearly appears from the allegations in the body of the complaint that said Loan & Trust Company was made a party as the executor of said will, and it appears from an instruction given at the request of appellees and from other papers in the case that the case was tried in the court below upon that theory; said theory must therefore be adhered to in this court on appeal.Oölitic Stone Co. v. Ridge, 169 Ind. 639, 83 N. E. 246, and cases cited;Conrad v. Hansen, 171 Ind. 43, 49, 85 N. E. 710;Studabaker v. Faylor, 170 Ind. 498, 507, 83 N. E. 747, 127 Am. St. Rep. 397.It is insisted by appellants that the court erred in giving each of instructions Nos. 8, 9, 11, and 14, requested by appellees, and in refusing to give each of instructions Nos. 31, 32, 34, and 35, requested by appellants.

Appellees insist that “no question is presented upon the evidence or instructions for the reason that appellants in their brief have not complied with clause 5 of rule 22(55 N. E. v.) of this court.”While appellants' brief may not be a model in complying with the requirements of said rule, it is clear from their first brief and reply brief that they have made a good-faith effort to comply with the same, and that they have substantially complied therewith, as to the questions we shall determine.This is sufficient.Howard v. Adkins, 167 Ind. 184, 186, 78 N. E. 665, and cases cited;Stamets v. Mitchenor, 165 Ind. 672, 675, 75 N. E. 579;Teeple v. State, 171 Ind. 268, 271, 86 N. E. 49;Pomeroy v. Wimer, 167 Ind. 440, 450, 78 N. E. 233, 79 N. E. 446;Ellison v. Branstrattor(Ind. App.)89 N. E. 513;Indiana Union Trac. Co. v. Heller, 44 Ind. App. 385, 89 N. E. 419;Simplex, etc., Co. v. Western, etc., Co., 173 Ind. 1, 88 N. E. 682.

Appellees further insist that “no question is presented as to instructions given or refused because appellants' exceptions to the giving and the refusal to give instructions were...