Duckwall v. Lease
| Decision Date | 10 April 1939 |
| Docket Number | 16106. |
| Citation | 20 N.E.2d 204,106 Ind.App. 664 |
| Parties | DUCKWALL et al. v. LEASE et al. |
| Court | Indiana Appellate Court |
Frank V. Dice and Russell J. Wildman, both of Peru, for appellants.
Rupe Brown & Reller, of Richmond, and F. G. Shuey, of Eaton Ohio, for appellees.
The facts were stipulated.
Ella Stevenson died testate on April 12, 1927, a resident of the state of Ohio and the owner in fee simple of a tract of real estate situated near Bunker Hill in Miami county, Indiana. The real estate involved here was the only tract of land owned by Mrs. Stevenson near Bunker Hill, Indiana.
Her will was probated on April 20, 1927, in the Probate court of Preble county, Ohio, and was duly probated as a foreign will in the Miami circuit court of Indiana on October 7, 1935. By the terms of her will she gave to her husband, G. Curtin Stevenson, her personal property, designated as "all chattels, moneys in the bank and out of the bank, all bonds and whatsoever else of value I may possess not otherwise herein specified," and by Item 2 provided: "that my said husband G. Curtin Stevenson, during his life, shall assume the full management and shall have the full use and benefit of all proceeds accruing from and on my farm situated near Bunker Hill, in the county of Miami, and state of Indiana, and at his demise, I direct that the said farm shall be sold and the proceeds divided equally, share and share alike, between my sister Cora Lease of the village of West Manchester, state of Ohio and H. A. Duckwall of the city of Elkhart, state of Indiana." H. A. Duckwall was a brother of the testatrix, and he and the sister named in her will preceded the testatrix in death. Ella Stevenson left no father, mother, child or children, or the descendants of any child or children surviving her, but left only her husband G. Curtin Stevenson.
G. Curtin Stevenson, named as executor of the last will and testament of said Ella Stevenson, qualified as such and served until the time of his death. He died testate, a resident of Preble county, Ohio, and his will was duly probated on February 9, 1933, in the Probate court of said Preble county, and was afterwards, on October 7, 1935, probated as a foreign will in the Miami circuit court of Indiana. By the terms of his will he bequeathed and devised to his wife, Ollie Stevenson, "one thousand dollars in addition to the five hundred dollars allowed her by law." The balance of his estate was to be divided among his nieces and nephew as follows: John M. Wehrley was named as executor and qualified and is now acting as such.
The only heirs at law of H. A. Duckwall were his children, Earl Duckwall, Ray Duckwall, Ralph Duckwall, Lewis Duckwall, May Bourne, and Elizabeth Moon. The sole heirs at law of Cora Lease were her children, Leon B. Lease and Mary Francisco.
G. Curtin Stevenson, as surviving husband of said Ella Stevenson, did not elect to take under the law, nor did he reject the provisions made for him under the terms of her will.
Sherman Duckwall, a brother of said Ella Stevenson, preceded her in death and left as his sole and only heirs at law his children, Helen Stewart, Esther Duckwall, and Josephine Duckwall. John W. Duckwall is a surviving brother of said Ella Stevenson.
The General Code of the state of Ohio (section 10581) provides in effect that a devise or legacy to any relative does not lapse by reason of the death of the devisee or legatee before the death of the testator.
Appellants, as the heirs of H. A. Duckwall, deceased (legatee under the will of Ella Stevenson), instituted this action to partition the real estate situated in Miami county, Indiana, of which said Ella Stevenson died seized the owner in fee simple and to quiet their title thereto. To appellants' complaint, which was in one paragraph, appellees answered in general denial. Appellee John M. Wehrley, executor of the estate of G. Curtin Stevenson, deceased, filed a cross-complaint. Appellees Josephine Duckwall, Madge Stevenson, Viola Stevenson, Ralph Stevenson, and Mabel Stevenson Ross also filed a cross-complaint upon the theory that the devise to Cora Lease, a sister, and H. A. Duckwall, a brother lapsed, because both preceded the testatrix in death and the real estate passed to G. Curtin Stevenson, surviving husband of the testatrix, as in case of intestacy, and that upon his death, the devisees and legatees of said G. Curtin Stevenson became the owners of the land in controversy as tenants in common. Answers in general denial were filed to the cross-complaints. Upon the issues thus formed the cause was submitted to the court for trial, resulting in a finding and judgment in favor of appellees Josephine Duckwall, Madge Stevenson, Viola Stevenson, Ralph Stevenson, and Mabel Stevenson Ross upon their cross-complaint and against appellants on their complaint; that said appellees, together with appellee Mary Francisco, were the owners of said real estate; and that their title thereto be quieted as against the appellants. In due time appellants filed their motion for a new trial containing the grounds that the decision of the court is contrary to law and that the decision is not sustained by sufficient evidence. The motion was overruled, and it is this action of the trial court which is assigned here as error for reversal.
Appellants contend that by the terms of her will Ella Stevenson gave a positive, unqualified, and mandatory direction to sell her real estate and that such direction operated as an equitable conversion of her real estate into personalty; that such conversion took place at the date of the death of testatrix; and that the property of said testatrix directed to be sold should be considered as personalty for the purpose of distribution and should be governed by the law of the domicile of the testatrix, to-wit, the state of Ohio, under which the devise or legacy to any relative does not lapse by reason of the death of the devisee or legatee before the death of the testator.
Although insisting on the theory of equitable conversion, appellants have asked for partition of the real estate.
There can be no doubt in the instant case that Ella Stevenson, by the terms of her will, gave a positive and unqualified direction that her farm situated near Bunker Hill in Miami county, Indiana, be sold at the demise of her husband and the proceeds distributed between her sister, Cora Lease, and her brother, H. A. Duckwall. Such direction in her will was sufficient to work an equitable conversion of the real estate therein referred to into money. And this is true, even though by the terms of the will, the sale of the real estate was not to occur until the death of her husband who was a life tenant. The failure to designate in her will by whom the sale should be made did not defeat or impair the power of sale. Under such circumstances appellants were not entitled to partition of the real estate in controversy. Walling v. Scott, 1911, 50 Ind.App. 23, 96 N.E. 481, 97 N.E. 388.
Furthermore, our statute forbids the partition of land contrary to the intention of the testator as expressed in his will. See Burns' 1933, § 3-2406, Sec. 1111, Baldwin's 1934.
The beneficiaries may all agree to take the real estate in its original condition in lieu of the proceeds from the sale thereof had pursuant to said will, thus reconverting it. However, one of the beneficiaries may not elect to take his share in land without the consent of the others, for each one has a right under the will to a sale of the land, and to whatever advantages would accrue by a sale of the real estate in its undivided condition, and he cannot be deprived of the right without his consent. Walling v. Scott, supra. See also Baker v. Copenbarger, 15 Ill. 103, 58 Am.Dec. 600; Ebey v. Adams, 135 Ill. 80, 25 N.E. 1013, 10 L.R. A. 162; Strode v. McCormick, 158 Ill. 142, 41 N.E. 1091; Darst v. Swearingen, 224 Ill. 229, 79 N.E. 635, 115 Am.St.Rep. 152; Pasquay v. Pasquay, 235 Ill. 48, 85 N.E. 316.
Since the trial court quieted the title to the real estate in appellees upon their cross-complaint and held that the beneficiaries under the will of the husband of Mrs. Stevenson were the owners of the real estate, a more difficult question is presented. Does the direction in Item 2 of the will of Ella Stevenson for the sale of the real estate in Miami county, Indiana, upon the demise of her husband, work an equitable conversion of the real estate into personal property so that its disposition would be governed by the law of the state of Ohio, where testatrix resided, instead of the law of Indiana, where the real estate is situated?
Appellants contend that under the terms of the will of said decedent an equitable conversion of the real estate therein referred to took place at the death of the testatrix; that the interests which the brother and sister named in the will would have taken, had they survived the testatrix, assumed the character of personal property from that date; and that the legacies to them did not lapse by virtue of the law of the state of Ohio.
Appellees insist that under the law of Indiana the devise to Cora Lease, sister, and H. A. Duckwall, brother, lapsed because both preceded the testatrix in death and the real estate passed to the heir or heirs of the testatrix as...
To continue reading
Request your trial