Ensminger's Estate, In re

• Decision Date: 07 April 1969
• Docket Number: No. 2,No. 468,468,2
• Citation: 246 N.E.2d 217,144 Ind.App. 338
• Court: Indiana Appellate Court
• Parties: In the Matter of the ESTATE of Cora C. ENSMINGER, Deceased. Ruth Elizabeth Crawford GILLE, Appellant, v. The INDIANA NATIONAL BANK OF INDIANAPOLIS, Executor and Trustee of the Last Will and Testament of Cora C. Ensminger, Deceased, William H. Norman, Marian Norman, Ivan I. Iliff, Trustees of Indiana University, Appellees. A 54

Page 217

246 N.E.2d 217

144 Ind.App. 338

In the Matter of the ESTATE of Cora C. ENSMINGER, Deceased.

Ruth Elizabeth Crawford GILLE, Appellant, v. The INDIANA NATIONAL BANK OF INDIANAPOLIS, Executor and Trustee of the Last Will and Testament of Cora C.

Ensminger, Deceased,

William H. Norman, Marian Norman, Ivan I. Iliff, Trustees of

Indiana University, Appellees.

No. 468 A 54.

Appellate Court of Indiana, Division No. 2.

April 7, 1969.

Rehearing Denied May 7, 1969.

Frank W. Mortion, Thomas C. Tumbove, Richard A. Rogers, Morton, Tumbove & Rogers, Indianapolis, for appellant.

Patrick J. Smith, Russell J. Ryan, Jr., Indianapolis, for appellee, The Indiana National Bank of Indianapolis, Executor, etc.; Smith, Morgan & Ryan, Indianapolis, of counsel.

Karl J. Stipher, Virgil L. Beeler, Indianapolis, for appellees, William H. Norman, Marian Norman, Ivan I. Iliff and trustees of Indiana University; Baker & Daniels, Indianapolis, of counsel.

PER CURIAM.

On February 4, 1966, Cora C. Ensminger, a resident of Marion County, Indiana, died testate leaving a will which was duly admitted to probate on February 7, 1966, and the appellee, The Indiana National Bank of Indianapolis was, on the same date, appointed executor thereof.

The dispositive provisions of the last will and testament of the deceased which are pertinent to the controversy now before use are as follows:

'ITEM TWO

'I hereby will, devise and bequeath to my husband, Leonard A. Ensminger, if he survives me, all of my estate, real, personal and mixed, wheresoever the same may be situated and whether now owned by me or hereafter acquired to be his absolutely and forever.

'ITEM THREE

'In the event my husband, Leonard A. Ensminger, does not survive me and I inherit from him, I hereby make the following specific bequests:

'(a) To Ivan I. Iliff, who for years was a faithful employee, if he is living at my death, the sum of One Thousand Dollars ($1,000.00) in cash. If he is not living at my death then this legacy shall lapse.

'(b) I give and bequeath to Ruth Elizabeth Crawford Gille, presently of Kirkwood, Missouri, if living, such of the clothing, personal effects, jewelry, and objects of art which I may have the right to dispose of, as Ruth Elizabeth Crawford Gille may select within such reasonable time, but in no event less than ninety days, after my decease as may be fixed by my executor.

'In making the foregoing bequests, I am not unmindful of the fact that I have a number of relatives with whom however, I have had little or no connection for a great many years, and whom I am purposely not including in any bequests or devises made under this Will. (Emphasis supplied)

'ITEM FOUR

'If my said husband, Leonard A. Ensminger, should predecease me and I inherit from him then if my net estate has a value of Fifteen Thousand Dollars or less after payment of the debts, expenses and taxes provided for in Item One hereof and the specific bequests provided for in Item Three hereof, I will, devise and bequeath the rest, residue and remainder of my property, real, personal and mixed to William H. Norman, M.D., if living, and if he is not living at my death then to his wife, Marian Norman, if living, and if she is not living at my death, then equally among the children of William H. Norman and Marion Norman, living at my death, and if no such child or children are living at my death then the said residue shall be distributed as provided in Item Five of this Will immediately following.

'ITEM FIVE

'If my said husband, Leonard A. Ensminger, should predecease me and I inherit from him then if my net estate exceeds Fifteen Thousand Dollars after payment of the debts, expenses and taxes provided for in Item One hereof and the specific bequests provided for in Item There hereof, I will, devise and bequeath the rest, residue and remainder of my property, real, personal and mixed to The Indiana National Bank of Indianapolis, IN TRUST NEVERTHELESS subject to the conditions, restrictions, provisions, powers and duties hereinafter set forth:

'1. The Trustee shall invest and reinvest from time to time, the corpus of the trust in United States Government Bonds and/or short term United States obligations and/or revenue or general obligation bonds of municipalities.

'2. The Trustee may pay itself reasonable compensation and may employ and pay professional assistance as it, in its sole discretion, may deem necessary or advisable, it may also borrow money from any source including itself and secure the repayment by a pledge of any assets in the trust.

'3. The net income from the trust shall be paid semiannually to William H. Norman, M.D. if living at date of payment, and for so long as he shall live, and upon his death, said income shall be paid to Marion Norman, if living, at date of payment and for so long as she shall live.

'4. This trust shall terminate upon the death of the last to die between William H. Norman, M.D. and Marion Norman, his wife, and the corpus of the trust and any undistributed income therein, after payment of any expenses of the trust, shall be paid over to the Trustees of Indiana University now located at Bloomington, Indiana, to be known as the Ensminger Loan Fund and for use solely and exclusively as follows: * * *' (Emphasis supplied)

The record on appeal shows that Leonard A. Ensminger, primary beneficiary under the will hereinbefore set out, did predecease the testatrix, Cora C. Ensminger, and further, that the net value of the testatrix's extate was of an amount substantially in excess of Fifteen Thousand Dollars. Therefore, the most significant provisions of the will are Item Three and Item Five, and the interpretation of these dispositive provisions serves as the primary question in this appeal.

On May 16, 1966, subsequent to appellant's petition, appellant was, by order of the Marion Probate Court, recognized as an interested person in the estate of the deceased. On October 16, 1967, appellant filed her amended petition for construction of the will, alleging therein that Item Three (b) contains an ambiguity as to what items the testatrix intended to be 'personal effects', and further, alleging that the following items were 'personal effects' within the meaning of the will: furniture, household goods, shares of stock in domestic corporations, treasury bonds, savings bonds, amounts in checking and saving accounts, life insurance proceeds, cash and jewelry. Thereafter, counsel for all parties agreed that the original separate motions for summary judgment of the appellees were to be refiled and addressed to appellant's amended petition for construction of the will. Both of said motions for summary judgment, one filed by the appellee-executor and trustee, and another filed by the appellees-beneficiaries, alleged that there was no genuine issue of a material fact alleged in the appellant's petition and that as a matter of law the term 'personal effects' as used in the will does not raise any issue capable of factual determination, but rather constituted a strictly legal question. The motions for summary judgment further alleged that the specific bequest of 'personal effects' did not include currency, bank accounts, stocks, bonds, insurance proceeds and investment assets.

On January 3, 1968, the Marion Probate Court entered judgment sustaining appellees' motions for summary judgment, and said judgment declared there to be no determinable issue of a material fact. The judgment specifically found that the specific bequest of 'personal effects' in Item Three (b) of the will did not include any currency, cash, bank accounts, stocks, bonds, insurance proceeds or investment assets.

It has been stated that the sustaining of a motion for summary judgment is prejudicial to a non-prevailing party in that said party is prevented from having his day in court, and, therefore, courts of appeal carefully scrutinize trial court determinations of motions for summary judgment. Jose v. Indiana National Bank of Indianapolis (1966), Ind.App., 218 N.E.2d 165, 167. In the instance of error in the summary judgment proceedings, requisite scrutiny compels reversal unless the error is harmless and no useful or corrective procedures could be taken on reversal.

The propriety of awarding summary judgment against appellant's petition for construction of the will is the first issue which we must determine in this appeal. Although not specifically stated in the applicable Indiana statutes, the court believes that a petition to construe a will is a complaint within the meaning of Acts 1953, ch. 112, § 605, p. 295, Burns' Ind.Stat., § 6--605 and Acts 1965, ch. 90, § 1, p. 126, Burns' Ind.Stat., § 2--2524. Section 6--605 provides as follows:

'Construction of will.--The court in which a will is probated shall have jurisdiction to construe it. Such construction may be made on the petition of the personal representative or of any other person interested in the will; or, if a construction of the will is necessary to the determination of an issue properly before the court, the court may construe the will in connection with the determination of such issue. When a petition for the construction of a will is filed during administration of the estate, notice of the hearing thereon shall be given to interested persons. If the estate has been closed prior to the filing of such petition, notice shall be given as in civil actions.'

The last sentence of § 6--605, supra, when read in part with subsection (b) of § 2--2524, supra, which states that summary judgment is...