Hartwig v. Schiefer

• Decision Date: 18 February 1897
• Docket Number: 17,781
• Citation: 46 N.E. 75,147 Ind. 64
• Parties: Hartwig, Administrator, et al. v. Schiefer
• Court: Indiana Supreme Court

46 N.E. 75

147 Ind. 64

Hartwig, Administrator, et al. v. Schiefer

No. 17,781

Supreme Court of Indiana

February 18, 1897

From the Allen Circuit Court.

Affirmed in part, reversed in part.

W. P Breen and S. L. Morris, for appellants.

T. E Ellison and C. W. Kuhne, for appellee.

OPINION

Howard, J.

This was an action to construe a will, and to compel distribution in accordance therewith.

George F. W. Schiefer, by his last will, devised his real estate in specific parcels, to his children, Caroline Haberkorn, Margaret Swartz, Sophia Bremer, and Charles W. Schiefer, and made certain bequests to his grandchild, Lorenz Schiefer, only child of George W. Schiefer, deceased, and to other parties. By the tenth item of his will, he directed that, out of any balance that might remain after paying his debts, the bequests previously made and the expenses of administering his estate, his executor should liquidate, as far as possible, the debt remaining on the property of appellee, Caroline S. Schiefer, wife of his son Charles. The ninth item of the will is as follows: "My life insurance policy, amounting to one thousand dollars, I hereby order to be paid to my executor, to carry out, this, my last will."

On May 17, 1894, appellee filed a petition in the matter of the estate of said George F. W. Schiefer, in which she alleged, after stating the above facts, that said Schiefer died a few days after making the above mentioned will, a copy of which she set out in the petition; that the children of said Schiefer had accepted the provisions of said will in their favor, and were then in possession of the property respectively devised to them; that, some time prior to the death of the said George F. W. Schiefer, the Mutual Life Insurance Company of New York issued a policy of insurance on his life, payable, at his death, to his wife, if living, or, if dead, to her children; that said Schiefer had always kept possession of this policy and regarded it as his own property, and had no other insurance on his life; that, after the death of said Schiefer, his children--their mother being dead--and his grandchild, had collected and divided among them the amount due on said policy; that the assets of the estate of George F. W. Schiefer, without including the amount of the said policy of insurance, would be insufficient, after paying the debts and legacies, to liquidate any portion of the mortgage of $ 950.00 on appellee's property, which is the debt mentioned in the tenth item of said will; that all the property of said Schiefer had been received by his executor, except the real estate devised, as aforesaid, to his children; that the only children of the wife of said Schiefer were the said Charles Schiefer, Caroline Haberkorn, Margaret Swartz, Sophia Bremer and George W. Schiefer; that said George W. Schiefer died after the death of his mother; that Herman H. Hartwig was the administrator of the estate, and said Lorenz Schiefer the only child of George W. Schiefer, deceased. The prayer of the petition was that the persons who received the proceeds of said policy of insurance should account therefor to the said administrator of the estate of George F. W. Schiefer.

On the overruling of demurrers to the complaint, the cause was submitted to the court, on answers in general denial. The decree of the court was substantially in accordance with the prayer of the complaint.

The assignments of error relied upon by appellants relate to the sufficiency of the petition or complaint, and to the overruling of the appellant's motion for a new trial and of the motion for judgment in their favor.

Counsel for appellants contend that the complaint is insufficient for the reason that it discloses that the life insurance policy, referred to in item nine of the will, was not in fact the property of the testator; that it was made in favor of his wife, and on her death belonged to her children; but that the words of the will do not show this fact, and hence the children are not called upon to elect as to which they will take--the provisions made for them in the will, or their interest in the insurance policy. In other words, that they may keep both.

Counsel state their position in these words: "The doctrine of election, as applied to wills, is this: If a testator disposes of property not his own, and gives a benefit to the person to whom that property belongs, the devisee or legatee accepting the benefits so given him, must make good the testator's attempted disposition of such person's property. Jarman on Wills (Bigelow's ed.), Vol. 1, 443. We do not for a moment dispute that this is the law, but simply say that it has not the slightest application to the case before the court. Our position is this:

1. The words of the will do not, in themselves, make a case for an election.

2. Parol evidence cannot be admitted to show an intention on the part of the testator not expressed in his will."

We think it very clear that the testator, in his will, assumes to be the owner of the insurance policy. He calls it his policy, and proceeds to dispose of it as a part of his estate. It therefore appears from the terms of the will itself that his devises and bequests are made on the presumption that the devisees, in accepting the provisions made for them by him, shall yield their interest in the policy, if any they have, to the uses and purposes named by him in the very will under which they claim. They receive the benefits given them in the will on condition that they shall suffer the proceeds of the...