Herron v. Stanton

• Decision Date: 07 October 1920
• Docket Number: 10,231
• Parties: HERRON ET AL. v. STANTON, ADMINISTRATOR
• Court: Indiana Appellate Court

147 N.E. 305

79 Ind.App. 683

HERRON ET AL. v. STANTON, ADMINISTRATOR

No. 10,231

Court of Appeals of Indiana

October 7, 1920

Rehearing denied January 26, 1921. Transfer denied May 18 1923.

From Marion Superior Court (91,204); Linn D. Hay, Judge.

Action by John Herron and others against Howard M. Stanton administrator de bonis non of the estate of

John Herron, deceased. From a judgment for defendant, the plaintiffs appeal.

Affirmed.

Charles T. Hanna and Thomas A. Daily, for appellants.

Henry H. Hornbrook, Charles W. Smith, Charles Remster and Albert P. Smith, for appellee.

OPINION

REMY, J.

Appellants, the heirs and next of kin of John Herron, deceased, instituted this action against appellee, administrator de bonis non with the will annexed of the estate of the decedent, to recover possession of the unsold real estate of which the decedent died seized. The issues were formed by a complaint in ejectment in two paragraphs, the first in the usual form, and as required by the statute; the second setting forth in detail the facts as to the decedent's estate, heirs, will, etc. To the former, appellee filed an answer in two paragraphs, and to the latter a demurrer which was sustained. A separate and several demurrer filed by appellants to each paragraph of the answer was overruled as to the first paragraph, and sustained as to the second. Appellants, having elected to abide by the sufficiency of their respective pleadings, refused to plead further, and judgment was rendered against them.

Errors assigned and relied upon for reversal are: (1) Sustaining appellee's demurrer to the second paragraph of complaint; and (2) overruling appellants' joint and several demurrer to the first paragraph of appellee's answer.

It appears from the facts pleaded in the second paragraph of complaint and in the first paragraph of answer, which pleadings are in substance the same, that John Herron departed this life testate, April 30, 1895, seized in fee simple of certain described real estate in the city of Indianapolis of the value of $ 122,350, and possessed of personal property of the value of $ 105,360.35; that by the terms of his will which was probated May 17, 1895, Herron, after making certain small bequests, devised and bequeathed the remainder of his property to the Art Association of Indianapolis, Indiana, a voluntary association organized under the laws of this state, the object of which was, as stated in its articles of association, "the buying, holding and selling of real estate and the improvement thereof, for the purpose of maintaining a permanent art gallery in the city of Indianapolis, Marion county, Indiana, to promote and encourage the study of the literature of art; to establish and maintain an institution for instruction in the various branches of art; and to buy and sell works of art." The said testator left surviving him no heirs, lineal or collateral, except certain paternal and maternal cousins in the sixth degree of consanguinity who are the appellants herein. The items of the will which are material to a proper determination of the questions involved in this appeal are as follows:

"Item 5. For the payment of the foregoing bequests and legacies, debts and expenses of administration, and the residuary bequest in the item next following, I direct that my executor, by collections and sales, shall reduce to money my entire estate, real and personal, wherever situated, and for such purpose, I do direct and employer my executor, to sell all said personal estate at public or private vendue, at such time and upon such terms and in such manner as to him shall seem meet without notice or appraisement; and for like purpose I do direct, authorize and empower my said executor, to grant, bargain, sell and convey all of my real estate wherever situated, in such parcels or tracts for such price or prices, upon such terms of cash or credit, and upon such securities, to such person or persons, at such time and within such period as he may deem to the best interests of my estate; said sales, however, not to be either unreasonably hurried or delayed. Said sales, or any of them, may be without order of court, at public or private vendue, and when at private vendue without notice, and when at public vendue upon such notice as my executor shall determine. My executor shall have power to make all necessary and proper conveyances, and deeds executed by him shall convey title as fully as though made by me in my lifetime.

"Item 6. After the payment of the special legacies, debts and expenses of administration, as provided in the previous items, I do give and bequeath all the residue and remainder of my estate, as the same shall be reduced to money, to the 'Art Association of Indianapolis, Ind.,' a corporation incorporated under the laws of the State of Indiana, on or about April 5, 1892, to be to said corporation absolutely and forever. Provided, however, and this bequest is upon the condition following: That the art gallery and art school of said association when established and maintained, shall each be designated and named by such name or names as will include the name of the testator as a part thereof, and the use of such name or names shall be perpetual, or so long as said art gallery and art school are severally maintained. The association may, however, if it prefer, adopt one name to include both gallery and school. My executor may pay to said association under this bequest the money realized by him from time to time, whenever he has received what is deemed by him proper evidence, that said association has adopted the name or names for the gallery or school as herein set forth. If said association shall not see fit to comply with the foregoing condition, or if, for any cause or reason, this bequest should fail or became invalid, then in either event I direct that my executor shall distribute the residue and remainder of my estate in this item sought to be bequeathed, to such religious and charitable societies, churches, organizations and corporations, located in the city of Indianapolis, Indiana, as he may select, and in such portions as he may determine, including or not, as he deems meet, those named in item third of this will."

Ambrose P. Stanton, who was named in the will as executor, qualified when the will was probated, and served as such executor until his death, May 28, 1912. After he qualified, and before his death, the executor prepared and filed an inventory of all the property of his testator, and pursuant to the terms of the will sold some of the real estate which, together with the personal property, he converted into cash and turned over to the Art Association, such association having, on May 17, 1895, formally accepted the benefits named in the will, and notified the executor that it would establish the art school and art gallery under the name of the testator, and maintain the same in accordance with the terms of the will. Thereafter, and as soon as sufficient money was in the hands of the executor to accomplish that purpose, and a suitable site could be secured, such site was purchased, and an art gallery and an art school were established thereon, and named and designated respectively the "John Herron Art Gallery" and "John Herron Art School," each of which has since been maintained. The will was never contested, and is now in full force and effect.

Appellants proceed upon the theory that the will of John Herron is valid except as to item six thereof; but that the unsold real estate, the possession of which they seek to recover, being embraced within the devise set forth in that item, had vested in appellants at the death of the testator for the reason that the devise was void, as being in contravention of the statutes of this state (§§ 3998, 9723 Burns 1914, §§ 2962, 6027 R. S. 1881), which statutes prohibit the suspension of the absolute power of alienation of real estate and of the absolute ownership of personal property for a longer period than during the existence of a life, or lives, in being at the time of the death of the testator. If item six is void as contended by appellants this cause must be reversed, otherwise the judgment of the trial court must in all things be sustained.

It is fundamental that every man has the right to make his own will, and thus dispose of whatever property he may leave, the title to which was, at the time of his death, in his sole right. Courts have no more right to make wills for the dead than they have to make contracts for the living. A devise or bequest may, of course, be void, but it is the policy of the law to uphold every provision of a will if it can be done without violating established legal rules of construction. As said by Lord Hardwicke in Sorresby v. Hollins (1740), 9 Mod. Rep 221, a "bequest is not void, and there is no authority to construe it to be void, if by law it can possibly be made good." The intention of John Herron as expressed in his will is not in doubt. It is clear that he intended to dispose of his entire estate; that no part of his estate should go to his heirs; and that with the exception of a few small bequests he intended that all of his property should go to the Art Association of Indianapolis, and that his name should be perpetuated as a part of the name of an art school and art gallery that should be organized and maintained by such art association. In accordance with that intention, a large part of his property was converted into cash, and for twenty-five years has been used by the association just as had been planned by the testator when he executed his will. Now, under such circumstances, must a court of justice set aside item six of John Herron's will, and, contrary to his desire and intention, as expressed in his will,...