Hayes v. Second Nat. Bank of Richmond

• Decision Date: 27 April 1978
• Docket Number: No. 1-777A160,1-777A160
• Citation: 375 N.E.2d 647,176 Ind.App. 299
• Parties: Margaret B. HAYES, Executrix of the Will and Estate of Stanley W. Hayes, Jr., Deceased, Plaintiff-Appellant, v. The SECOND NATIONAL BANK OF RICHMOND, Defendant-Appellee.
• Court: Indiana Appellate Court

Page 647

375 N.E.2d 647

176 Ind.App. 299

Margaret B. HAYES, Executrix of the Will and Estate of Stanley W. Hayes, Jr., Deceased, Plaintiff-Appellant, v. The SECOND NATIONAL BANK OF RICHMOND, Defendant-Appellee.

No. 1-777A160.

Court of Appeals of Indiana,First District.

April 27, 1978.

Rehearing Denied May 23, 1978.

Gale Graber, Graber & Sandifer, P. C., Indianapolis, for plaintiff-appellant.

William H. Reller, Reller, Mendenhall, Kleinknecht & Milligan, Richmond, for defendant-appellee.

ROBERTSON, Judge.

Plaintiff-appellant Margaret B. Hayes (Hayes), as executrix, appeals the granting of defendant-appellee's, The Second National Bank of Richmond (Bank), motion for summary judgment construing the will of Stanley W. Hayes, Sr. and presents the following issues for review.

(1) Whether the testator's will manifested a clear intent that the remainder of the trust vest in the children surviving at the death of the trust beneficiary rather than at the death of the decedent.

(2) Whether IC 1971, 29-1-6-1(c) applies to the case at bar.

Decedent Stanley W. Hayes, Sr. bequeathed a specific amount of money to his sons, Brice E. Hayes, Winchell C. Hayes, and Stanley W. Hayes, Jr. and made a bequest for his institutionalized daughter, Joan, to the Bank in trust, for her use and benefit.

Stanley W. Hayes, Jr., predeceased his sister Joan on April 2, 1975; the latter died on May 1, 1975. Hayes, as executrix of the estate of Stanley W. Hayes, Jr., brought an action against the Bank for wrongful distribution of the residue of the trust created for and during the lifetime of Joan Hayes in that distribution was made only to the two brothers who survived her death.

The following portion of Item V of testator's will forms the crux of the controversy:

"At the death of my daughter and after the payment of her proper burial, then all property remaining in said trust, I give, devise and bequeath to my daughter's children, equally, and if she have no children, then the same to my other children then living, equally, absolutely and in fee simple." (Our emphasis).

Hayes contends that this portion of the provision may be interpreted to apply to all children still living at the death of the testator. If so, then she, as executrix of her husband's estate, would be entitled to a portion of the residue of the trust property. The Bank, on the other hand, contends that the clear intent of the testator was that the residue of the trust be distributed to his children surviving at the death of Joan, the trust beneficiary. Although Hayes requested trial by jury, the trial court was persuaded by the latter argument and granted the Bank's motion for summary judgment.

The testator undoubtedly has the right, within legal limitations, to fix the time of vesting of any estate created by him. Moreover, the question of whether or not in a given case a particular estate or interest is vested or contingent depends, in final analysis, upon the intention of the testator as interpreted from the will. The various rules of construction which the courts have formulated to assist them in case of doubt must yield when they would lead to a result which is contrary to the manifest intention of the testator. However, if the will itself fails to disclose the intention of the testator, the court will invoke the settled rules of construction to determine whether the interest was intended to be vested or contingent. Dawson v. McKee (1954), 124 Ind.App. 233, 116 N.E.2d 538.

The law favors the vesting of estates at the earliest possible moment, and wills should be construed accordingly in the absence of a clear manifestation of the intention of the testator to the contrary. Further, words postponing the estate are construed to refer to the beginning of possession and enjoyment of the estate and not to the vesting thereof. Moorman v. Moorman (1973), 156 Ind.App. 606, 297 N.E.2d 836; Aldred v. Sylvester (1916),184 Ind. 542, 111 N.E. 914. In the case at bar, the intent of the testator must have been manifested so clearly that the trial court was justified in rendering summary judgment for the Bank. The purpose of the summary judgment rule is to provide a procedural device for prompt disposition of cases where there is no genuine issue of material fact to be determined in a trial, either by a court or a jury. A material fact is one which may be dispositive of the case; clearly, testator's intent is a material fact. If any doubt remains as to the existence of a genuine issue of material fact, such doubt must be resolved against the movant of the summary judgment. Mitchell v. Pilgrim Holiness Church Corp. (7th Cir. 1954) 210 F.2d F.2d 879, cert. den. 347 U.S. 1013, 74 S.Ct. 867, 98 L.Ed. 1136. Moreover, even if the facts are not in dispute, summary judgment is not appropriate when the information before the court reveals a good faith dispute as to the inferences to be drawn from those facts. Yerkes v. Washington Manufacturing Co., Inc. (1975), Ind.App., 326 N.E.2d 629 (disapproved on other grounds in In re Marriage of Edley A. Robbins and Jean Robbins (1976), Ind.App., 358 N.E.2d 153); Matter of Big Racoon Conservancy Dist. v. Kessler Farms, Corp. (1977), Ind.App., 363 N.E.2d 1004. However, despite conflicting facts and inferences on some elements of a claim, summary judgment may be proper where there is no dispute or conflict regarding a fact that is dispositive of the litigation. Letson v. Lowmaster (1976), Ind.App., 341 N.E.2d 785; Aafco Heating and Air Conditioning Co. v. Northwest Publications, Inc. (1974), Ind.App., 321 N.E.2d 580.

Hayes contends that title to all property remaining in said trust at the death of testator's daughter vested at the death of the testator. We do not agree. First, we must determine the nature of the provision of Item V. A remainder is "the remnant of an estate in land, depending upon a particular prior estate created at the same time and by the same instrument, and limited to arise immediately on the determination of that estate and not in abridgement of it." Black's Law Dictionary (rev. 4th ed. 1968). We must further determine whether such remainder is vested or contingent. A vested remainder, if not defeated, is characterized by an absolute right to become a possessory interest at the end of the prior particular estate; there exists an immediate right of prior enjoyment in an ascertained person. Thus, the remainderman must be in existence and ascertainable at the time of the testator's death. C. Smith & Boyer, Survey of the Law of Property. (2d ed. 1971) at 79. A contingent remainder, however, is an "estate which is limited to take effect either to a dubious and uncertain person or upon a dubious and uncertain event, which may never happen or be performed." Black's Law Dictionary, supra; 96 C.J.S. Wills § 929. In the case at bar, the right of the children of the testator to receive the remainder of the trust was contingent upon Joan not having any children: ". . . and if she have no children, then the same to my other children then living, equally, absolutely and in fee simple." Therefore, the limitation to the other children of the testator depended not only upon the death of Joan Hayes, but also upon whether or not she bore any children. Until the death of Joan, the right of the testator's children to take was uncertain.

Hayes argues that if the words of survivorship embodies in the phrase "then living" can be construed as...