Easterday v. Easterday

• Decision Date: 02 November 1937
• Docket Number: 15947.
• Parties: EASTERDAY v. EASTERDAY et al.
• Court: Indiana Appellate Court

10 N.E.2d 764

105 Ind.App. 80

EASTERDAY v. EASTERDAY et al.

No. 15947.

Appellate Court of Indiana, in Banc.

November 2, 1937

Parker Crabill, Crumpacker & May and Woodson S. Carlisle, all of South Bend, for appellant.

Miller Guy and Jones, Obenchain & Butler, all of South Bend, for appellees.

WOOD Judge.

January 19, 1921, one John H. Easterday duly executed his last will and testament, which, omitting the description of certain tracts of real estate therein described, the signature and attestation clauses, is in words and figures as follows:

"I, John H. Easterday, being of sound and disposing mind and memory, do make, declare and publish this to be my last will and testament:

"Item 1. I give and devise to my wife, Blanche E Easterday, all personal property of which I die possessed.

"Item 2. I give and devise to my wife, Blanche E Easterday, the following described real estate in St. Joseph County and State of Indiana, to-wit: (describing forty acres of real estate) subject to the payment of one-half of any debts that I may owe at my death.

"Item 3. I give and devise to my wife, Blanche E Easterday, to have, use and occupy, for and during the term of her natural life the following real estate in St. Joseph County and State of Indiana, to-wit: (describing seventy acres, more or less of real estate)

"Item 4. I give and devise, share and share alike, to my children, Elbert Easterday, Harold Easterday, Pearl Easterday Schermier, Alice Easterday and Otis Easterday, the following described real estate in St. Joseph County and State of Indiana, to-wit: (describing eighty acres more or less of real estate)

"Item 5. At the death of my wife, Blanche E. Easterday, from my estate then remaining, I give and devise to Charles G. Moon, son of my wife, a sum of money equal to one-fifth of the value of the farm lands devised to my children by Item Four of this will.

"Item 6. At the death of my wife, Blanche E. Easterday, from my estate remaining after all debts are paid and Item Five has been executed, then I give and devise the rest and residue of my property, share and share alike, to my children, Elbert Easterday, Harold Easterday, Pearl Easterday Schermier, Alice Easterday and Otis Easterday and Charles G. Moon, son of my said wife, subject to Item Seven hereof.

"Item 7. I give and devise to my said wife, Blanche E. Easterday, any and all real estate of which I die possessed and not specifically described by the previous items of this will.

"Item 8. Should any beneficiary under this will be under the age of twenty-five years at the time of my death, then I appoint the executor of this will as trustee to hold in trust for the use and benefit of said beneficiary or beneficiaries, all such bequests and the accumulations thereof to be delivered to such beneficiary or beneficiaries upon arriving at the age of twenty-five years.

"Item 9. I appoint my said wife, Blanche E. Easterday, Executrix of this my last will."

John H. Easterday died July 15, 1935, leaving said will, which was duly admitted to probate, in full force and effect. All the legatees and devisees named and designated therein, except Charles G. Moon, who was a child of Blanche E. Easterday by virtue of a former marriage, survived him. Appellant, his surviving widow, did not file her election to take under the law instead of the will within the period of one year after the probate thereof as provided by section 6-2332, Burns' 1933, section 3341, Baldwin's Ind.St.1934, so she is conclusively presumed to have accepted the provisions made for her in the will. Whitesell v. Strickler (1906) 167 Ind. 602, 78 N.E. 845, 119 Am.St.Rep. 524. She qualified as executrix of the will. Appellant was the second childless wife of the testator. The appellees Elbert Easterday, Harold Easterday, Otis Easterday, and Pearl Easterday Schermier, named as devisees in item 4 of the will are children of the testator by his first wife and are his only children. At the time of his death the testator left debts owing which together with the cost of administering his estate amounted to about $11,000. He left personal property of the estimated value of $7,500. He left no real estate other than that devised by his will. The estate is solvent. In as much as Blanche E. Easterday by her conduct accepted and agreed to be bound by the terms of her husband's will, it is agreed therefore, that she is personally liable under the terms of item 2 of the will for the payment of one-half of his debts. It is agreed that the children of the testator, who are appellees here are gratuitous devisees.

Since the estate is solvent, the final decision reached in this controversy can in no way affect the rights of creditors. In other words, this is not a controversy between the surviving widow and creditors of the testator, but it is a controversy between the surviving widow and the other devisees named in his will. Its nature is stated in appellant's brief in the following language. "The real question at issue in this case, as between the widow and the other devisees, the children of the testator, is whether the one-half of the debts owed by the testator at his death, other than the one-half the widow is required to pay by Item 2 of the will, and the expenses of administration shall or shall not be paid from the personal property bequeathed to the widow. She contends that all of the property owned by the testator at his death, not devised and bequeathed to her, shall first be resorted to for the payment of the other one-half of the debts before any property bequeathed and devised to her may be resorted to for that purpose. On the other hand, the children of the testator contend, and the lower court held, that the personal property should first be resorted to for the payment of the remaining one-half of the debts, thus placing the burden for the payment of all of the testator's debts upon his widow."

For the purpose of settling this question, the appellee Blanche E. Easterday, executrix of the estate of John H. Easterday, deceased, filed her petition in the trial court, making herself as a natural person and all other coappellees, parties defendant thereto, asking for a construction of said will. The petition sets out the preliminary facts as above summarized, a copy of the will, and alleges further that "doubts have arisen and uncertainty exists as to the true intent and meaning of said will as to the payment of debts of said testator and as to the amounts and proportion in which said debts are made charges upon the real estate devised in said will." The prayer is for a judgment of the court construing the will.

To this petition the appellant filed an answer, the material allegations of which may be summarized as follows. Blanche E. Easterday, as a natural person, and not as executrix of the last will, by her answer alleges that she is the widow of the deceased; that by his last will he bequeathed all of his personal property to her; that he devised a certain tract of land containing 40 acres to her, but made the devise subject to the payment of one-half of any debts that he might owe at his death; that he devised to her an estate for the term of her natural life in 70 acres of other land; that by item 4 of his will he devised to his children (naming them) a tract of land containing 80 acres, to each an undivided one-fifth part thereof; that by item 6 the testator devised all the remainder of his estate, after the payment of all debts, and at the death of his wife, to his five children (naming them) and Charles G. Moon, her son by her first husband; that said Charles G. Moon died prior to the death of the testator and that by item 7 he devised to his wife any and all real estate of which he might die possessed and not specifically described in the previous items of his will; that the testator left no other real estate than that specifically described in the will; that she had accepted the provisions of the will made for her benefit and that she had become liable to pay, and would pay, the one-half of the debts that the testator owed at his death and by so doing exonerate the estate from the payment of one-half of the debts. The prayer was that the other property owned by the testator at his death, aside from that bequeathed and devised to her, be ordered sold to make assets for the payment of the other one-half of the debts of the testator and the cost of administering his estate.

The testator's five children filed a joint answer, the material allegations of which may be summarized as follows. It alleged that by item 1 of his will the testator bequeathed to his wife all the personal property which he might own at the time of his death; that by the second item of his will he devised to her 40 acres of land, charged with the payment of one-half of his debts; that by the fourth item of his will he devised to the defendants, his five children named herein, a tract of land containing 80 acres; that their codefendant Blanche E. Easterday, had accepted the provisions of said will for her benefit; that Blanche E. Easterday, individually and not as executrix of said will, was chargeable with the payment of one-half of the debts of said estate; that the other one-half should be paid by the plaintiff as executrix, from the proceeds of all the personal property that came into her hands as such before the payment of any legacy under said will and before any of the real estate devised should be chargeable with any portion of said debts. The prayer was that Blanche E. Easterday, individually, pay one-half of all the debts of the decedent and that the other one-half of all of said debts be paid by her as executrix of the will of the decedent and out of the personal estate which was owned by him at the time of his death before the...