In re Estate of Woollen, 27A02-0112-CV-849.

Decision Date11 October 2002
Docket NumberNo. 27A02-0112-CV-849.,27A02-0112-CV-849.
Citation776 N.E.2d 428
PartiesIn the Matter of the ESTATE OF David Murton WOOLLEN, Deceased. Earlham College, Appellant-Intervenor, v. Kay N. Woollen, Appellee-Petitioner and Personal Representative de Bonis Non.
CourtIndiana Appellate Court

Brent D. Taylor, Kelly S. Witte, John A. Gardner, Baker & Daniels, Indianapolis, IN, Attorneys for Appellant.

James T. Beaman, Gene R. Johnson, Johnson, Beaman & Todd, Marion, IN, Attorneys for Appellee.


RILEY, Judge.


Appellant-Intervenor, Earlham College ("College") appeals the trial court's order concluding that certain property owned by David Murton Woollen ("testator") did not vest in his daughter as his sole heir at law at his death and become part of her estate upon her death, but reverted to his estate to be distributed to his collateral heirs upon his daughter's death.

We affirm.


The College raises several issues for our review, which we restate as follows: whether the testator intended for the real estate, given to his daughter for her lifetime, to vest in her, as his sole heir at law, upon his death.


On December 30, 1939, the testator created a will, the terms of which stated that his wife, Mary E. Woollen, was to "hold during her life time my residence property, grounds and other buildings located at # 216 W. First Street in the town of Fairmount, Indiana." (Appellant's App. p. 18). The will further provided that "[a]t the death of my wife, Mary E. Woollen ... all my property shall descend to my only child, Margaret W. Thomas ... to be held by her during her life time. At her death (if she have no blood heirs) all property shall pass in fee simple to my estate. If my daughter shall have blood heirs at her death all property shall go equitably to them." (Appellant's App. p. 18).

The testator died on September 27, 1949. On October 5, 1949, the testator's will was probated and, pursuant to the terms of the will, his wife received a life estate in the real estate. Upon the wife's death in 1965, the testator's daughter, Margaret W. Thomas, received use of the property for her lifetime. On December 27, 1999, the daughter died, leaving no "blood heirs"; however, she had a will under which she left her entire estate to the College.

On July 28, 2000, appellee-petitioner, Kay N. Woollen, grandson to the testator's brother, filed a petition to reopen the testator's estate to complete the administration of the estate. The trial court granted Woollen's request and appointed him personal representative de bonis non. On February 13, 2001, the personal representative filed a Petition Requesting Instructions as to Interpretation and Construction of the Decedent's Will and Disposition of Estate Assets.

On April 12, 2001, the College filed a motion for leave to intervene in the reopened estate proceeding. The College contended that its intervention was necessary to enable it to establish its belief that it owned the real estate referred to in testator's will. The College's request was granted on April 24, 2001.

A hearing was held on the personal representative's petition on September 18, 2001. At the hearing, the personal representative and the testator's collateral heirs by their attorney contended that the testator had intended for his property to be held by his daughter during her lifetime. They further contended that the property was to be left to his daughter's children if she had any during her lifetime, but if she did not, the property was to revert to the testator's estate to be distributed to his collateral heirs. The attorney thus urged the court to interpret the provision in the will which stated that the property should pass in fee simple to "my estate" to mean the testator's heirs, excluding his daughter.

The College, by its attorney, contended that the real estate vested in fee simple in the testator's daughter upon his death, despite the provision in the will that stated that his daughter should hold the property for her lifetime. According to the College, the testator's "estate" was to be determined, not upon the daughter's date of death, but upon the testator's date of death in 1949. The College further contended that in 1949, his sole heir at law was his daughter. Thus, the College reasoned that when the daughter died, leaving no "blood heirs" in 1999, the real estate, which had already vested in the daughter upon the testator's death and which had not been divested by the birth of any children, became part of her estate, which the daughter left by will to the College.

Pursuant to the College's request, the trial court entered findings of fact and conclusions of law. After noting that there were no factual disputes, the trial court found that the testator had intended for the real estate to be held by his daughter for her lifetime only and that if she died without blood heirs, the real estate was to revert to the testator's estate to be distributed to his collateral heirs, including the personal representative. To give effect to the testator's intent, the trial court applied what it called the "implied exception doctrine" so that when the testator's heirs under the intestacy laws were determined in 1949, the estate included all of the testator's heirs, except for his daughter. Specifically, the trial court found as follows:

The Personal Representative, Kay Woollen, one of [testator's] collateral heirs, argues the doctrine of "implied exception", recognized by Indiana Courts, to defeat the College's argument that reversion of [testator's] property to his estate means it ultimately was devised to [the daughter] under the laws of intestacy as a fee simple devise. The implied exception doctrine honors the intention of the testator this way: since the clear, expressed intention of David Woollen was to keep his property in his family, the implied exception doctrine means the Court must construe his will in such a way that when his property reverted to his estate (since his sole linieal [sic] heir, [his daughter], died without "blood heirs"), then the class of heirs, recognized as of September 27, 1949, who would inherit under intestacy laws would include all of [testator's] heirs, except for [his daughter], (the "implied exception") who we now know died without "blood heirs".

(Appellant's App. pp. 9-10). The court then concluded that the property was "available for distribution to his collateral heirs as they existed at the time of [the daughter's] death." (Appellant's App. p. 10). The College now appeals.

I. Standard of Review

In this case, the College requested specific findings of fact and conclusions of law pursuant to Ind. Trial Rule 52(A). Normally, this court, in reviewing the trial court's decision, applies a two-tiered standard to ensure that the evidence supports the findings and the findings support the trial court's conclusion. See Plan Com'n of Harrison County v. Aulbach, 748 N.E.2d 926, 932 (Ind.Ct.App.2001), reh'g denied, trans. denied. However, in this case, the trial court found, and the parties agree, that the facts are not in dispute. Thus, the only question before the trial court was the interpretation or legal effect of the will, a question which can be determined as a matter of law. See Lutz v. Fortune, 758 N.E.2d 77, 81 (Ind.Ct.App. 2001). Therefore, we may affirm the judgment on any legal theory supported by the findings. Mitchell v. Mitchell, 695 N.E.2d 920, 923 (Ind.1998).

II. Testator's Intent

To place the issue in context it is first necessary to understand the nature of the interests created by the testator's will. With regard to the real estate, the testator left a life estate, first to his wife and then to his daughter. At his daughter's death, the property was to pass in fee simple to his daughter's "blood heirs" and, if she had none, the property was to revert to his "estate." By devising the real estate to his daughter's blood heirs and then to his estate, if there were no blood heirs, the testator created a remainder interest in his daughter's blood heirs and an alternative remainder interest, or a remainder over, in his estate in the event the first remainder interest failed. See Burrell v. Jean, 196 Ind. 187, 146 N.E. 754, 757-58 (1925). According to the College, because the daughter did not have any blood heirs at the time of the testator's death,1 the interest vested as a determinable fee in the alternative contingent remainder, the testator's "estate," subject to being divested by any blood heirs who came into existence during the daughter's lifetime. The College further contends that because the testator's only heir at law at his death in 1949 was his daughter, the interest vested solely in her in fee simple and she properly disposed of it by will at her death.

Whether the daughter received a fee simple in 1949 as her father's sole heir depends first upon whether the testator intended for the real estate to vest in his estate at his death as opposed to his daughter's death. With regard to the time of vesting, it has been recognized that "[i]t is undoubtedly the right of the testator ... to fix the time of vesting of any estate created by him, and 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 gathered from the will." McDowell v. Fletcher, 103 Ind.App. 165, 4 N.E.2d 577, 579 (1936), trans. denied. However, if the testator's intention cannot be gleaned from the written provisions of the will, the court will invoke certain rules of construction to aid it in determining the testator's intention. Id. Two well-established rules of construction are that the "law favors the vesting of estates at the earliest possible moment, ... in the absence of a clear manifestation of the intention of the testator to the contrary" and that "words postponing the estate are construed...

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