Ebenezer Old People's Home of the Evangelical Church v. Bernhard

• Decision Date: 28 May 1935
• Docket Number: No. 14832.,14832.
• Citation: 196 N.E. 129,100 Ind.App. 636
• Parties: EBENEZER OLD PEOPLE'S HOME OF THE EVANGELICAL CHURCH et al. v. BERNHARD et al.
• Court: Indiana Appellate Court

100 Ind.App. 636

196 N.E. 129

EBENEZER OLD PEOPLE'S HOME OF THE EVANGELICAL CHURCH et al.

v.BERNHARD et al.

No. 14832.

Appellate Court of Indiana, in Banc.

May 28, 1935.

Appeal from Marshall Circuit Court; Albert B. Chipman, Judge.

Action by Charles Melburn Bernhard and others against the Ebenezer Old People's Home of the Evangelical Church and others, in which the named defendant and others filed a cross-complaint, to which the defendant South Bend Old People's Home, Incorporated, filed an answer. From an adverse judgment, the named defendant and others appeal.

Affirmed.

See, also, 91 Ind. App. 189, 170 N. E. 616.

Louis M. Hammerschmidt and Milton A. Johnson, both of South Bend, for appellants.

Parker, Crabill, Crumpacker & May, of South Bend, and Claude D. Carson, of Bremen, for appellees.

KIME, Judge.

This appeal involves a dispute which is before this court for the second time. It arose first during the settlement of the estate of George Bernhard, deceased, in the St. Joseph Circuit Court, on a judgment of that court to the effect that the residue of the estate of the deceased passed under the sixth item of his will to the appellee, South Bend Old People's Home, Inc., and that the appellants, the Ebenezer Old People's Home of the Evangelical Association, Ebenezer Orphan Home of the Evangelical Church, and the Western Old People's Home of the Evangelical Church, and one Haven-Hubbard Home were not entitled to the residue.

It appears that George Bernhard, an old resident of the city of South Bend, died there, testate, on December 8, 1926. His last will and testament was probated in the St. Joseph Circuit Court on December 15, 1926. Item sixth of his will reads as follows:

“In the event there is an institution in the City of South Bend at the time of my death or within two years after the time of my death, which has for its purposes of its existence the maintenance of a home for old people irrespective of their religious beliefs upon at least a partial charitable basis then I desire and direct my said executor to turn all the rest and residue of the property of which I may die to said institution.

“In the event however there be no such institution located within the said City of South Bend at the time of my death or within two years thereafter then I give, devise and bequeath all the rest and residue of the property of which I may die seized equally between ‘Ebenezer's Old People's Home of the Evangelical Association’ of Ebenezer, New York, and ‘The Ebenezer Orphans Home of the Evangelical Association, located at Flat Rock, Seneca County, State of Ohio,’ and ‘The Western Old People's Home of the Evangelical Association’ located at Cedar Falls, Iowa. Said funds so going to the said respective institutions to become a perpetual fund for said institutions of which the interest thereof shall be used as the officers of said institution may see fit for the good of their respective institutions.”

Albert Bernhard was designated in this will to be the executor thereof, and letters testamentary were issued to him by said court. He proceeded at once to administer the estate and when, in the course of the administration, it became apparent that the residue of the estate was considerable, being approximately $50,000, in cash and securities taken at their then value, the parties named in the sixth item of the will, and the executor, filed their several petitions as follows: The South Bend Home, the three Ebenezer Homes, the Haven-Hubbard Home, and also filed his own petition in the matter of said estate. By each petition, except that of the executor, the petitioner, or petitioners, prayed for an order of the court directing the executor to pay and deliver to it, or to them, as the case may be, the residue of the estate. The petition of the executor alleged that the South Bend Old People's Home, Inc., and the Haven-Hubbard Home each had filed its petition for an order directing him to pay and deliver the residue of the estate to it, and that he did not know which, if either, of these petitioners was entitled to such residue and that if neither was entitled to it, and no other institution in the city of South Bend made claim to the residue on or before December 9, 1928, that it would be necessary for him to turn over such residue to the three Ebenezer Homes according to the directions contained in the will. The petition of the Ebenezer Homes asked that the residue of the estate be paid to them as provided in item VI of said will.

No other pleadings, demurrers, or motion of any kind or character were filed before the rendition of the following judgment, but all the parties were represented by attorneys at the hearing on the petitions, and each attorney cross-examined the witnesses of the opposing claimants and introduced evidence in opposition to each other's claims, and the several attorneys argued before the court the relative merits of his client's claim.

The court thereafter made a finding upon which he entered the following judgment: “It is, therefore, ordered and adjudged by the Court that said Albert Bernhard, executor of the last will of said George Bernhard, deceased, turn over, deliver and pay to South Bend Old People's Home, Inc., the entire residue of the property, money and assets of the said estate, remaining after the payment of the indebtedness of the estate, expenses of administration and the specific legacies, and it is further ordered and adjudged by the court that the petitioner, Haven-Hubbard Memorial...