Kilgore v. Kilgore

• Decision Date: 18 December 1890
• Citation: 127 Ind. 276,26 N.E. 56
• Parties: Kilgore v. Kilgore et al.
• Court: Indiana Supreme Court

127 Ind. 276

26 N.E. 56

Kilgore

v.Kilgore et al.¹

Supreme Court of Indiana.

Dec. 18, 1890.

Appeal from circuit court, Delaware county; D. Moss, Judge.

Jas. N. Temler, for appellant. J. W. Ryan, for appellees.

OLDS, J.

This is an action by the appellant against the appellees to construe items 4 and 5 of the will of David Kilgore, deceased. These items are as follows: “ Fourth. After the death or marriage of my said wife, as the case may be, all my real and personal property shall be disposed of as follows: One-fourth part to be held by my son Obed during his natural life; and, in case he should die, leaving no child or children of his own, then said property to go to my surviving child or grandchildren, in equal parts. No adopted child shall take any part thereof. Fifth. My son David to have and to hold in trust for his children now born, or which may hereafter be born, during his natural life, one full equal fourth part of said property, real and personal, with the right to use any income or rents of said property to aid in raising and educating said children; and he shall not be required to give bond as such trustee, but for any waste or abuse of trust be removed, and another appointed by the court.” Upon the trial of the cause below, the court, by its finding, placed the following construction on said fourth and fifth items of said will: “That the true meaning and construction of the fourth clause of the will of David Kilgore, deceased, set out in the complaint, is that the portion of the estate of said David Kilgore, deceased, which is therein referred to, is vested in the defendant Obed Kilgore, the son of said David Kilgore, for and during the term of his natural life, and no longer; that the remainder of said property, real and personal, is vested in the plaintiff, David Kilgore, the surviving son of said David Kilgore, deceased, and the defendants Charles W. Kilgore and Mary G. Davis, grandchildren of the said David Kilgore, deceased, by his deceased son, Alfred Kilgore, and Albert Kilgore, Clarence Kilgore, and Frank Kilgore, grandchildren of said David Kilgore, deceased, by his deceased son, Tecumseh Kilgore, as tenants in common, one-third being vested in the plaintiff, David Kilgore; one-third in the defendants Charles W. Kilgore and Mary G. Davis, jointly; and one-third in the defendants Albert Kilgore, Clarence Kilgore, and Frank Kilgore, jointly; such remainder to said plaintiff and said defendants subject, however, to be defeated in the event that, at the death of said Obed Kilgore, he shall leave surviving him a legitimate child or children, in which case such remainder in all said property shall vest in fee-simple and absolutely in such child or children of said Obed Kilgore, to the exclusion of the plaintiff and the defendants above named, the children of Alfred Kilgore and Tecumseh Kilgore, deceased. Second. That the true intent and meaning of the fifth clause of said last will and testament of David Kilgore, deceased, is that the portion of the estate of said David Kilgore therein referred to shall be held and enjoyed by the plaintiff, David Kilgore, in trust for his children, now born or which may hereafter be born, for and during the term of his natural life, with the full right to him to use, enjoy, and dispose of the rents, income, and profits thereof during his natural life, subject, however, to the trust and duty upon his part to appropriate so much of such rents, profits, and income as may be necessary for the purpose of raising and educating his children; and that the remainder in fee-simple of all said property, real and personal, is vested in fee-simple and absolutely in the children of said David Kilgore now in being, the defendants Mary L. Connolly, Alfred Kilgore, Obed Kilgore, Jr., and Byron Kilgore, subject to open up and let in any other children which shall be born to said David Kilgore; and that said plaintiff, David Kilgore, is not required by said clause of said will to give any bond to secure the performance by him of the trust created by said clause, and is subject to removal by the court for waste or breach of trust.” It is contended by counsel for the appellant that the court erred in its construction of said clause of the will, in this: that the fee in the property devised by the fourth clause of the will vested in David Kilgore, the plaintiff, (he being the only surviving child of said David Kilgore, deceased,) subject to the life-estate of said Obed, subject to be divested upon Obed leaving...