Henry v. Thomas

• Decision Date: 12 March 1889
• Citation: 20 N.E. 519,118 Ind. 23
• Parties: Henry et al. v. Thomas et al.
• Court: Indiana Supreme Court

118 Ind. 23

20 N.E. 519

Henry et al.

v.Thomas et al.

Supreme Court of Indiana.

March 12, 1889.

Appeal from circuit court, Marion county; Ralph Hill, Special Judge.

Appeal from a decree of distribution of the estate of Mary Ferrell, deceased, under her will.Robert Denny and Carson & Thompson, for appellants. L. H. Reynolds, for appellees.

Olds, J.

Mary Ferrell died September 5, 1884, testate, leaving surviving her Andrew Ferrell, her husband, and brothers and sisters and children of deceased brothers and sisters, brothers and sisters and children of deceased brothers and sisters of her deceased husband. The testatrix was childless. By her will she gave her husband $2,000, and then provided as follows: “The balance of my estate I will and bequeath as follows: To be divided equal between my brothers and my sisters, and the children of deceased brothers and sisters, and the brothers and sisters of Perry J. Brinegar, deceased, and the children of deceased brothers and sisters, except the following, to-wit: The heirs of Henry Brinegar, deceased, to whom I will the sum of one dollar, and to Serilda Rohbacke I will one dollar, and to Martha Barrett one dollar, and to Milton Henry one dollar, and this is all I give and bequeath to these out of my estate.”

A controversy arose among the general legatees as to the portion they were each entitled to receive under the provisions of the will as hereinbefore quoted; some claiming the remainder of the estate should be distributed so as to give to each of the children of a deceased brother and sister of herself, and to each of the children of deceased brothers and sisters of Perry J. Brinegar, a portion of her estate equal to the portion given to each of her surviving brothers and sisters, and the surviving brothers and sisters of Perry J. Brinegar, deceased,-Perry J. Brinegar being the deceased husband of said testatrix. In other words, some of the legatees claimed that the distribution should be per capita, and others claimed that distribution should be made per stirpes.

The executor filed his petition in the court below, showing such contention among the legatees, and requesting the court to construe the will, and declare its true meaning and intent. Upon the filing of said petition by the executor, the appellants filed their cross-petition, making the record of the will and probate thereof a part of the same, and asking the court to adjudge each of them entitled, under the provisions of the will, to one-twelfth of that part of the estate in controversy, upon the theory that the will provides that distribution should be made per stirpes and not per capita. Following this, appellee, Sarah A. Henry, as guardian of six minor children of William H. Henry, a deceased brother of said testatrix, filed a cross-petition, showing there are 25 legatees entitled to share in the portion of the estate in controversy, and claims that each is entitled to an equal share thereof. Perry J. Rhue et al., appellees, filed a cross-petition, making a copy of the will an exhibit; and alleging that, in order to distribute said estate, it was necessary for the court to construe said will, and asking that the same be construed, and the interest of the legatees determined. Thereupon the cause was submitted to the court. The will was offered in evidence, and the court found the names and number of the legatees, brothers and sisters of the testatrix and of her deceased husband, and children of deceased brothers and sisters of testatrix and her deceased husband, (25 in number,) and that they were each entitled to one twenty-fifth part of said estate under the will, and made an order and rendered a judgment for the distribution of said estate accordingly. The appellants filed a motion for new trial, which was overruled, and exceptions reserved to the ruling by the appellant.

The first cause assigned for new trial is that “the decision of the court is not sustained by sufficient evidence.” The second alleged that the decision of the court was contrary to law. We think these properly challenge the construction given to the will, as it fairly appears from the bill of exceptions that the will was all the evidence submitted to the court. The only contest was as to the construction to be given the language used in the devise of the remainder of the estate of the testatrix, and no other evidence was competent in the case, unless there was such ambiguity in the language used as to admit of parol evidence, and there was no such ambiguity in the will in controversy as to admit of parol evidence to aid in its interpretation. It is contended by counsel for appellee that the will is not properly included in the bill of exceptions, and therefore cannot be considered. The will is made an exhibit to the cross-petition of Perry J. Rhue et al, and as such is properly copied into the record on page 17 of the transcript. The bill of exceptions states that the will was in evidence, and is copied on page 17 of the record. Where a paper is properly a part of the record as an exhibit, which is made a part of a pleading, and once copied into the record, it is useless to recopy it into the bill of exceptions, and it is sufficient to refer to it in the bill of exceptions, and state the fact that it was admitted in evidence, and that a copy of it appears at a particular place in the record. To hold otherwise would be to require a needless incumbrance of the record. We do not say that this is a model bill of exceptions, but in this case copies of the will were set out and made a part of the petition and cross-petitions filed by the various legatees. There were no facts in dispute. All that was asked of the court was to construe certain language in the will, the terms of which were not disputed, and the court was asked to decide what each legatee took by virtue of the will, and to make an order for the distribution of the estate in accordance with the construction given. No answers were filed to the petition or cross-petitions; no denial of any of the allegations in either of them; so that the facts as alleged in the petition were admitted, and the court was called upon to make a finding, and render judgment on the facts as admitted by the pleadings. There was no necessity for any evidence, and the bill of exceptions states that, “immediately upon the filing of the petition and cross-petitions, the court announced its readiness to hear the same; whereupon the attorneys for petitioners and cross-petitioners commenced to argue to the court the question as to what construction should be given to the will.” While the record shows the proceedings to be somewhat informal, yet we think in this particular case it properly presents the question to this court.

The question presented is one upon which the authorities are not harmonious. It has been the almost universal rule of law-making bodies, in providing to whom the estate of an intestate shall descend, to provide that the estate shall...