Hall v. Curd
| Decision Date | 20 May 1932 |
| Docket Number | No. 14286.,14286. |
| Citation | 94 Ind.App. 440,181 N.E. 168 |
| Parties | HALL v. CURD et al. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Probate Court, Marion County; Mahlom Bash, Judge.
Final report of Martin B. Hall, executor of the will of Charlotta Adam, deceased, to which Charlotta M. Curd and others filed exceptions. Upon the exceptions and the executor's answer thereto, judgment was rendered requiring the executor to withdraw his final report, and subject realty to payment of legacies, and the executor appeals.
Reversed, and new trial granted, with directions.Richard L. Ewbank, of Indianapolis, for appellant.
Othniel Hitch and Edwin Thompson, both of Indianapolis, for appellees.
On October 25, 1920, Charlotta Adam executed her last will and testament. Between that date and the date of her death on February 15, 1926, she executed six different codicils to this will. The appellant, as executor of said will and the codicils thereto, filed his final report on September 8, 1930. In this report appellant stated that, upon the day of the death of said testatrix, objections were filed to the probating of the will and codicils; that they were thereafter upheld and admitted to probate; that, pending the trial of the will contest, the beneficiaries entered into an agreement under which rentals received from real estate belonging to the testatrix was used for the payment of the funeral expenses and other claims; that the testatrix left but $29 in cash which was turned over to the Indiana Trust Company, appointed as special administrator during the will contest; that as such executor he received nothing from the estate of testatrix; that her beneficiaries provided the funds with which to pay the costs incident to the administration thereof in the sum of $67.10. An itemized statement of the costs was set out in the report. The executor also alleged in the report that there were no other outstanding claims to be settled by him.
Items 16 and 17 of the will of Charlotta Adam were in the following language:
In the fourth codicil of her will executed December 15, 1923, said testatrix modified item 16 in this language:
The appellees each filed verified exceptions to appellant's final report as executor in which they alleged that they had not been paid the sum of $180 as provided in the above items of the will of said testatrix; that it was the duty of the executor to incumber or sell the tract of real estate devised to Albert Luke in item 16 of the will, for the purpose of obtaining funds with which to pay said legacies, asking the court to enter an order to that effect. To these objections appellant filed an answer in which it was alleged that Albert Luke tendered to the appellees each the sum of $180 within the time and as provided by said will, that appellees refused to accept said sum so tendered to each of them, find that therefore appellees, pursuant to the terms of the will, had waived any claim which they might have in and to said legacies.
On the issues thus joined the cause was submitted to the court for trial. The objections of each of the appellees to appellant's final report were sustained, and the court made an order requiring appellant to withdraw his final report and subject the real estate devised to Albert Luke to sale for the purpose of creating assets out of which to pay the legacies to appellees. To this order and judgment appellant objected and excepted. He also filed a motion for a new trial, which was overruled.
From the judgment of the trial court appellant appeals to this court, alleging as errors for reversal: (1) Error in sustaining the exceptions of appellee Curd to the final report of appellant; (2) error in sustaining the exceptions of appellee Willis to the final report of appellant; (3) error in sustaining the several exceptions of appellee to appellant's final report; (4) error in ordering and adjudging that appellant as executor should bring proceedings for the sale of real estate for the payment of alleged bequests to appellees; (5) error in overruling appellant's motion for a new trial.
The record shows without contradiction that Albert Luke accepted the devise of real estate to himself and that he had paid to each of the legatees, except appellees, the sum of $180 previous to the filing of the final report by appellant. There is evidence in the record that is not controverted showing that Albert Luke had a conversation with each of the appellees, within three months after the death of the testatrix, regarding the payment to each of them of $180, as provided in item 16 of the will in which he expressed a willingness to pay said legacies.
[1] The primary purpose and object to be attained, if possible, in the construction of a will, is...
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