Fuehring v. Union Trust Co. of Indianapolis, No. 17493.

Docket NºNo. 17493.
Citation73 N.E.2d 754, 225 Ind. 217
Case DateJune 23, 1945
CourtSupreme Court of Indiana

225 Ind. 217
73 N.E.2d 754

FUEHRING et al.
v.
UNION TRUST CO.
OF INDIANAPOLIS et al.

No. 17493.

Supreme Court of Indiana.

June 23, 1945.


Appeal from Probate Court, Marion County; Dan V. White, judge.

Dissenting opinion on petition to transfer.

For former opinion, see 69 N.E.2d 141.

[73 N.E.2d 754]

Braney & Hughes, of Indianapolis, for appellants.

Davis, Baltzell, Hartsock & Dongus, and Paul G. Davis, all of Indianapolis, for appellees.


PER CURIAM.

Petition to transfer denied.

EMMERT, Judge (dissenting).

This case comes up for the consideration of this court on a petition to transfer from the Appellate Court. See, 1946, Ind.App., 69 N.E.2d 141. The transfer was denied by a majority action of this court without opinion, but an opinion denying the transfer would have been proper. Hunter v. Cleveland, etc., R. Co., 1930, 202 Ind. 328, 174 N.E. 287;Myers v. Newcomer, 1930, 202 Ind. 335, 174 N.E. 290. Therefore a dissenting opinion is proper, and in view of the most important principles involved in the protection of the property rights of infants as presented by this record, choked with error from the time the original action was instituted to construe the last will of

[73 N.E.2d 755]

testator and through the proceedings to review the judgment of the Marion Probate Court thereon, the writer would be derelict in his duties if the dangerous precedents therein established remain unchallenged.

The testator, William H. Fuehring, died a resident of Marion County, Indiana, June 10, 1934, leaving surviving him his widow, Louise Fuehring, his son, John H. Fuehring who had two children William Fuehring and Ethel Christine Fuehring, and two daughters, Clara Fuehring, and Lillie Leonard who died intestate January 31, 1935 leaving surviving her as her only heir at law one Carl Fuehring. This will was admitted to probate in the Marion Probate Court June 11, 1934.

The material parts of Item IV of said last will of William H. Fuehring, deceased, provided in part as follows:

‘ITEM IV. I hereby give, devise, and bequeath unto The Union Trust Company of Indianapolis, in trust only, all the rest, residue and remainder of my estate, real, personal and mixed, of every kind and character, and wheresoever the same may be situated, and of which I die seized or possessed, the same to be held by said trustee, in trust only, for the following uses and purposes, to wit:

‘* * *

‘(b) Said Trustee monthly, shall pay and apply to and for the use and benefit of my son, John H. Fuehring, for a period of fifteen years following my death, the entire net income of one-third of said trust fund, and after said fifteen year period shall elapse, said trust, as to my said son John Fuehring shall terminate, and said Trustee shall pay and distribute said share to my said son, and in the event of the death of my said son, either before or after my death, but prior to the aforesaid distribution, said Trustee shall hold and apply his share of said trust estate for the use and benefit of his child or children until the youngest of his children who may be living at the time of my death, shall arrive at the age of thirty-five years, at which time said trust shall terminate and said trustee shall pay and distribute said share unto the descendants of said John H. Fuehring, in equal portions, share and share alike.

‘(c) Said Trustee shall also monthly pay and apply to and for the use and benefit of my daughter, Lillie Leonard, during her lifetime, the entire net income of one-third of said trust fund, and upon the death of said Lillie Leonard, either before or after my death, said Trustee shall hold and apply her one-third thereof for the use and benefit of her son Carl Fuehring, during his lifetime, and upon the death of said Carl Fuehring, said trust shall terminate and said Trustee shall pay and distribute said one-third of said trust fund unto those who would be my heirs at law, according to the law of descent of the State of Indiana, at the time of the death of said Carl Fuehring.

‘(d) Said Trustee shall monthly pay and apply to and for the use and benefit of my daughter Clara Fuehring, during her entire lifetime, the entire net income from one-third of said trust fund, and upon the death of said Clara Fuehring, the one-third of said trust fund so set aside for her use and benefit, shall revert to and become a part of said trust estate, and thereafter said trust fund shall be divided into two equal parts instead of three, and thereupon said Trustee shall use one-half of said trust fund for the use and benefit of my said son John Fuehring, and his child or children, and the remaining one-half thereof for the use and benefit of my said daughter Lillie Leonard, and her son Carl Fuehring, under the same conditions as are set forth in Clause B. and C. of item four of this will.

‘(e) Each and every payment, right and interest granted to the beneficiaries of this trust is subject to the condition, however, that it shall not be assigned nor encumbered by such beneficiary, nor levied upon, attached or garnished by any creditor of either of them, and in the event of any such assignment, encumbrance or levy, such payment, right or interest shall be held and applied by said Trustee, on the terms above provided, to and for the use and benefit of the wife, husband, and children of such beneficiary, and if none, then paid to the person with whom said beneficiary resides upon such terms as said Trustee may deem best in its judgment and discretion.’ (Italics supplied.)

[73 N.E.2d 756]

By an agreement dated January 9, 1925, between William H. Fuehring, the testator, and his wife, Louise Fuehring, provision was made for payment to her in lieu of and in full settlement of all her statutory rights, inheritance and distributive share under the laws of descent, so no question as to any of the widow's rights is presented.

On June 17, 1937, in the Marion Probate Court, Clara Fuehring as daughter of the testator, and Carl Fuehring as the sole heir at law of Lillie Leonard who was the daughter of testator, as plaintiffs filed a complaint to construe the will of the testator naming therein as defendants The Union Trust Company of Indianapolis as trustee under said last will, The Union Trust Company of Indianapolis, Louise Fuehring, the widow, John H. Fuehring, the testator's son, and William Fuehring and Ethel Christine Fuehring, minor children of John H. Fuehring. The complaint set forth the entire will, but alleged that doubts and uncertainties had arisen as to the legal effect of Item IV and that said Item IV is ‘ null, void and of no effect whatever.’ (Italics supplied.)

Process was duly issued and served upon the minor defendants, William Fuehring and Ethel Christine Fuehring. Thereafter on December 15, 1937 the Marion Probate Court, finding process had duly been served upon said minor defendants, appointed an attorney of Marion County, Indiana as guardian ad litem for said minors, and the guardian ad litem accepted said trust and filed an answer of general denial in their behalf.

On the same day and as a part of the same entry the Marion Probate Court proceeded to construe the last will of William H. Fuehring, deceased, and Item IV thereof, reciting therein it heard evidence, but failing to show any argument of counsel on the issues involved, and found and adjudged that Item IV of said will was ‘invalid and of no force or effect’ and that all other provisions of the will were legal; that the assets belonging to said trust be distributed to the plaintiffs Clara Fuehring, Carl Fuehring and the defendant John H. Fuehring share and share alike. Thereafter the trustee made distribution pursuant to the terms of said decree. The guardian ad litem did not file a motion for a new trial, but did sign an O. K. to the decree, along with all other counsel representing other parties, before its entry.

On March 11, 1943 the appellants William Fuehring and Ethel Christine Fuehring as infants by their next friend filed a complaint in the Marion Probate Court against the other parties to the original action to construe the will and The Union Trust Company of Indianapolis as guardian of John H. Fuehring, to review the judgment of the Marion Probate Court construing the will of William H. Fuehring, deceased, pursuant to § 2-2604, Burns 1946 Repl. (Acts 1881 Spec. Sess., ch. 38, § 665, p. 240 et seq.)1 During the pendency of the action the plaintiff William Fuehring became twenty-one years of age, and by order of court he was permitted to continue the prosecution of the action under his own name without the intervention of a next friend. The issues were closed on said complaint, and after a trial of such issues judgment was entered against the plaintiffs, from which the appeal was taken.

The appointment of an attorney as guardian ad litem is proper. However, ‘When the attorney accepted the trust imposed upon him by the order of the court it became his duty to investigate the law and the facts, and to use due care and diligence in his efforts to protect the rights and interests of his ward * * *.’

[73 N.E.2d 757]

Whinery v. Hammond, etc., Bank, Trustee, 1923, 80 Ind.App. 282, 292, 140 N.E. 451, 454.

The guardian ad litem did not file any demurrer to the complaint to construe the will, and if he had done so it would not have raised any question as to the character of the construction to be given the will. Shriver v. Montgomery, 1914, 181 Ind. 108, 103 N.E. 945. If the construction of the will contended for by the original plaintiffs had been in connection with some other relief sought, such as partition or quiet title, the overruling of a demurrer for want of facts might have been error. Attica Bldg. & Loan Ass'n v. Colvert, 1939, 216 Ind. 192, 23 N.E.2d 483. There was sufficient doubt under the terms of the will to justify a construction, and this being the case, a demurrer for want of facts would have been properly overruled. Therefore, it was unnecessary for the guardian ad litem to file such a...

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1 practice notes
  • Armstrong v. Presslor, No. 28313.
    • United States
    • Indiana Supreme Court of Indiana
    • June 26, 1947
    ...the alleged error.’ It may be readily seen that in the instant case the appellant was invited to file an answer under the rules when the [73 N.E.2d 754]court ruled that she answer. It may likewise be readily reasoned that she intended to file an answer in conformity with the rules when her ......
1 cases
  • Armstrong v. Presslor, No. 28313.
    • United States
    • Indiana Supreme Court of Indiana
    • June 26, 1947
    ...the alleged error.’ It may be readily seen that in the instant case the appellant was invited to file an answer under the rules when the [73 N.E.2d 754]court ruled that she answer. It may likewise be readily reasoned that she intended to file an answer in conformity with the rules when her ......

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