Fischer v. Kaylor

• Decision Date: 14 August 1969
• Docket Number: No. 2,No. 1068A169,1068A169,2
• Citation: 145 Ind.App. 148,18 Ind.Dec. 238,250 N.E.2d 19
• Parties: Roland A. H. FISCHER, Appellant, v. William K. KAYLOR, Joann Ruckman, David K. Taylor, Joann Ruckman, administratrix of the Estate of Sidney C. Riethmiller, Deceased, Appellees
• Court: Indiana Appellate Court

Page 19

250 N.E.2d 19

145 Ind.App. 148

Roland A. H. FISCHER, Appellant, v. William K. KAYLOR, Joann Ruckman, David K. Taylor, Joann

Ruckman, administratrix of the Estate of Sidney C.

Riethmiller, Deceased, Appellees.

No. 1068A169.

Appellate Court of Indiana, Division No. 2.

Aug. 14, 1969.

Larry Busick, Osterman & Busick, Ralph R. Blume, Nieter, Smith, Blume, Wyneken & Dixon, Fort Wayne, for appellant.

Vincent J. Backs, Kennerk, Dumas, Burke & Backs, Fort Wayne, for appellees.

SHARP, Judge.

This action was commenced by the Appellant, Roland A. H. Fischer, by the filing of an action to quiet title on December 14, 1966, wherein the Appellees, William K. Kaylor, Joann Ruckman, David K. Kaylor and Joann Ruckman, administratrix of the Estate of Sidney C. Riethmiller, deceased, were designated as Defendants. In substance the complaint alleged that William K. Kaylor, Joann Ruckman and David K. Kaylor were the sole and only heirs of Sidney Riethmiller, deceased, and that the Plaintiff was the owner in fee simple of certain described real estate situated in Allen County, Indiana, and that the defendants each claimed an interest adverse to the plaintiff and had no interest in said real estate.

On January 23, 1967, the Appellees-Defendants filed their Motion for Summary Judgment, which in substance alleged that William Riethmiller, deceased, husband of Sidney Riethmiller, owned the real estate described in the Plaintiff's complaint as a tenant in common with his sister. Said Motion for Summary Judgment further alleged that William Riethmiller predeceased his wife, Sidney Riethmiller, and left a Last Will and Testament dated May 11, 1944, which reads as follows:

'I, the undersigned, William G. Riethmiller, being of sound and disposing mind and memory, do hereby make, publish and declare this as and for my Last Will and Testament, hereby revoking all Wills by me heretofore made.

ITEM ONE.

WHEREAS under the Will of August Riethmiller, deceased, I was appointed as Trustee subject to the terms and conditions of the Trust therein contained, which said Will was admitted to probate on the 6th day of February, 1940.

NOW THEREFORE, I, the undersigned, upon my death do hereby designate constitute and appoint as my successors in Trust to carry out all the terms and conditions of said Trust heretofore referred to, my wife Sidney C. Riethmiller and my nephew Roland A. H. Fischer, to act as co-trustees. Such successors in trust shall operate said trust and act as such trustees without bond, and without being required to give bond and to carry out said trust in accordance with the terms and conditions of said trust created by the Will of said August Riethmiller, with the same powers and duties on the part of said trustees as were conferred upon me as Trustee in said Will of August Riethmiller, and without being required to file reports with any Court.

ITEM TWO.

I direct my Executrix hereinafter named out of the proceeds of my estate to pay all of my just debts, expenses of last illness, and burial.

ITEM THREE.

I give and bequeath to my wife, Sidney C. Riethmiller, for and during her natural life, a frame building erected upon a strip of ground commonly known as 2005 Broadway, such strip of ground being approximately nine feet in width, and upon the death of my said wife the residue in fee simple to Roland A. H. Fischer.

ITEM FOUR.

I give and bequeath to my wife, Sidney C. Riethmiller, all of the stock which I may own in the Lincoln National Bank and Trust Company at the time of my death, to be hers absolutely and in fee simple. I request, however, that in event any of said stock shall be remaining in the hands of my wife at the time of her demise, that said stock so remaining in her hands shall go to my nephew, Roland A. H. Fischer.

ITEM FIVE.

I will and direct my Executrix hereinafter named to erect over my grave a headstone exactly like the headstones on the graves of my father and mother, and on the same lot.

ITEM SIX.

I bequeath and devise to my wife, Sidney C. Riethmiller, my undivided interest in Lots Numbered 5 and 6 and the East 15 feet of Lot Numbered 17 in B. D. Miner's First Addition to the City of Fort Wayne, Allen County, Indiana, according to the recorded plat thereof, in fee simple. In event Sidney C. Riethmiller should predecease me, then I bequeath and devise the share she would have taken under this Item of my will to my nephew, Roland A. H. Fischer; I request, however, that in event my wife, Sidney C. Riethmiller, shall die the owner of the above described real estate, that upon her death the fee simple title shall go to Roland A. H. Fischer, or if the property be sold in her lifetime, then any proceedings remaining in her hands from the sale thereof at the time of her death shall go to my nephew, Roland A. H. Fischer.

ITEM SEVEN.

All the rest and residue of my property of every kind and nature, and wheresoever situated, I hereby give and bequeath to my wife, Sidney C. Riethmille, in fee simple and absolutely. In event my wife, Sidney C. Riethmiller should predecease me, then I give and bequeath the share which she would have taken under this Will, had she survived me, to my nephew Roland A. H. Fischer.

ITEM EIGHT.

I hereby nominate, constitute and appoint my wife, Sidney C. Riethmiller, as Executrix of this my Last Will and Testament.

IN WITNESS WHEREOF, I have hereunto set my hand and seal, and have declared, in the presence of witnesses hereinbelow named, this instrument consisting of eight (8) items, to be my Last Will and Testament, on this 11th day of May, 1944.

S/William G. Riethmiller (SEAL)'

Appellees' Motion for Summary Judgment further alleged that under Item Six of the Last Will and Testament of William Riethmiller his wife, Sidney Riethmiller took a fee simple title to her husband's interest in the subject real estate and that Appellant, Roland A. H. Fischer acquired no interest in said real estate. That subsequent to the death of William Riethmiller, Sidney Riethmiller and her co-tenant sold the property on a conditional sales contract and therefore the estate of Sidney Riethmiller now owned an undivided one-half interest in said real estate. Appellees' Motion for Summary Judgment further alleges that the Defendants-Appellees, Joann Ruckman, William K. Kaylor and David K. Kaylor, were the sole and only heirs at law of Sidney Riethmiller.

On May 3, 1967 the Appellant-Plaintiff filed his Answer to Defendants' Motion for Summary Judgment and Motion for Summary Judgment for Plaintiff. The allegations of Plaintiff's Answer and his own Motion for Summary Judgment are consistent with the allegations of the Complaint and with Appellees-Defendants' Motion for Summary Judgment except he alleges that he is a son of Edna Fischer, the sister of William Riethmiller and is therefore a nephew of William Riethmiller. He further contends that Item Six of the Last Will and Testament of William Riethmiller devised only a life estate to said decedent's widow, Sidney Riethmiller, with a power to dispose of said real estate. He further alleged that said William Riethmiller and Sidney Riethmiller were childless. Appellant claimed to be a fee simple owner of the one-half interest in the subject real estate.

On September 15, 1967, the trial court granted Appellees' Motion for Summary Judgment and entered judgment for the Appellees finding and determining that Appellees were the owners of the one-half interest in the subject real estate and quieting title to the same in Appellees subject to the rights of the contract purchaser.

The Appellant alleges that the trial court erred in granting summary judgment because there was a genuine issue of a material fact in the intent of the testator.

There are two basic questions to be decided in the determination of this appeal. The first is whether summary judgment was proper on the basis of the record before the trial court. The second is whether the judgment on the merits is correct as a matter of law.

We are here called upon to consider an additional dimension to the Indiana Summary Judgment Statute, Burns' Indiana Statutes Annotated, § 2--2524, which we have said is patterned after Rule 56 of the Federal Rules of Civil Procedure. This new dimension concerns itself with the effect of opposing parties filing cross motions for summary judgment. The Appellees contend that Appellant, by filing his Motion for Summary Judgment has conceded that no genuine issue of material fact exists. Appellees cite Olenick v. Brucker, 173 F.Supp. 493 (D.C.D.C.1959); Dell Publishing Co. v. Summerfield, 198 F.Supp. 843 (D.C.D.C.1961), affirmed 113 U.S.App.D.C. 1, 303 F.2d 766; Garrett Freight Lines Inc. v. United States, 235 F.Supp. 594 (D.C.Idaho 1964) and Geiser v. Permacrete, Inc., 90 So.2d 610 (Fla.1956). These cases cited by the Appellees do not represent the weight of authority and are not the better reasoned cases on the subject. In 3 Barron & Holtzoff, Federal Practice and Procedure, § 1239, pages 176--177, it is stated:

'The fact that...