Geake, Matter of
| Decision Date | 22 January 1980 |
| Docket Number | No. 3-377A70,3-377A70 |
| Parties | In the Matter of the Trust under the Last Will and Testament of Charles H. GEAKE, Deceased. The INDIANA MASONIC HOME at Franklin, Indiana, and Shriners Hospital For Crippled Children, Appellants-Respondents, v. Robert C. GEAKE, Appellee-Petitioner. |
| Court | Indiana Appellate Court |
John H. Heiney, Rothberg, Gallmeyer, Fruechtenicht & Logan, Fort Wayne, for appellants-respondents.
Thomas J. Blee, Daniel K. Leininger, Parrish, Eggers, Larson & Burt, Fort Wayne, for appellee-petitioner.
Charles H. Geake died May 14, 1959 survived by his spouse, Goldie, and a son, Robert. By a will executed in 1956 the testator left his residuary estate in trust. The relevant portions of the testamentary trust read as follows:
"ITEM IX
All the rest, residue and remainder of my estate of every kind, value or character whatever, be the same real, personal or mixed, and any interest therein, which I may own or have the right to dispose of at the time of my death, I give, devise and bequeath to the Lincoln National Bank and Trust Company of Fort Wayne, Indiana, as Trustee, in fee simple and in trust for the following uses and purposes:
(1) To collect the earnings of said Trust corpus and to pay from said earnings in monthly installments the sum of $175.00 to my wife, Goldie I. Geake and a like sum of $175.00 monthly to my son, Robert C. Geake.
I also further direct that should the yearly income from such corpus exceed the amount specified herein as monthly payments to my wife and son, then that excess, if any, shall be divided equally between my wife and son at the end of each calendar year.
I also further provide and direct that should the income from such trust corpus be insufficient to meet the monthly payments herein provided for, then my said Trustee shall invade the corpus of the trust to secure funds from which to make said monthly payments. Such invasion of the corpus is also directed, if sickness, accident or any other just cause shall make the above monthly payments inadequate for my wife's care, support and Maintenance or the care, support and maintenance of my son and his family. The necessity and propriety of these with-drawals (sic) last mentioned and the amount thereof shall be determined by the trustee upon written application made by said beneficiaries.
I further provide that should my wife, Goldie I. Geake, or my son, Robert C. Geake, pre-decease me, then in that event, my trustee shall pay the yearly income of such trust to the survivor in equal monthly installments of $175.00, subject to the acceleration of payments for just cause as above provided. The excess income over and above $2100.00, the yearly payment, is to be accumulated as part of the corpus of the trust.
Should my son die before my wife, leaving a child or children, I direct my trustee to pay over his share of said income as above set out, for the care, maintenance and education of said child or children and upon the death of my wife, said trustee shall use the entire income from said trust fund for the care, maintenance, and education of said child or children until the youngest of them shall reach the age of 21 years, at which time the entire trust property, principal and income, shall be paid over, one-half to The Shriners Hospitals for Crippled Children, A Corporation, for the use and benefit of the hospitals owned, operated and maintained by said Corporation and the remaining one-half of the entire trust corpus and income to the Indiana Masonic Home at Franklin, Indiana.
Should my son die before my wife, without leaving a child or children, then the entire income shall be paid to my wife, as above directed and upon her death, I direct that my trustee pay the income from said trust fund to my brothers and sister: William C. Geake, Samuel S. Geake, and Edith B. Geake, in equal shares or to the survivor of them and upon the death of the last survivor of them, then the entire Trust property, corpus and income, shall be paid over, one-half to The Shriners Hospitals For Crippled Children, A Corporation, for the use and benefit of the hospitals owned, operated and maintained by said Corporation and the remaining one-half of the entire trust Corpus and income, to the Indiana Masonic Home at Franklin, Ind.
Should my wife predecease me and my son predecease me without leaving a child or children, then I direct that my trustee pay the income from said trust to my brothers and sister, as above directed, and upon the death of the last survivor of them to the Shriners Hospitals and the Indiana Masonic Home, as above directed."
The draftsman of this will attempted to anticipate several possible conditions or combination of circumstances that might exist in the future but unfortunately omitted that which actually occurred. Thus the will made no provision for disposition of the corpus in the event that Goldie survived the testator but predeceased Robert and it is this hiatus which renders a construction of the will necessary.
The trial court made the following entry of judgment:
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