Matlock v. Lock

• Decision Date: 26 January 1905
• Docket Number: No. 5,013.,5,013.
• Citation: Matlock v. Lock , 38 Ind. App. 281, 73 N.E. 171 (Ind. App. 1905)
• Parties: MATLOCK et al. v. LOCK et al.
• Court: Indiana Appellate Court

38 Ind.App. 281

73 N.E. 171

MATLOCK et al.

v.LOCK et al.¹

No. 5,013.

Appellate Court of Indiana, Division No. 2.

Jan. 26, 1905.

Appeal from Circuit Court, Rush County; Douglas Morris, Judge.

Action by Mellie Lock and others against Martha E. Matlock and others. From a decree in favor of complainants, defendants appeal. Reversed.

Smith, Cambern & Smith, for appellants. W. M. Sparks, W. A. Cullen, and J. D. Megee, for appellees.

WILEY, J.

Action by appellees against appellants for the construction of a will and to quiet title to real estate. The complaint was originally in three paragraphs, to the first of which a demurrer was overruled. An answer was filed in denial, and subsequently appellees dismissed their third paragraph of complaint, which asked for a partition of the real estate. Trial by the court, and upon proper request a special finding of facts was made and conclusions of law stated thereon. The substance of the conclusions of law is that, under the will in controversy, the appellee Mellie Lock took a fee-simple title to the real estate involved, upon the death of the decedent, who was her grandfather, and that certain provisions of the will which attempted to fix and designate specific conditions upon the contingency of which the fee-simple title should rest in Mellie Lock were invalid and void. The errors assigned are that the court erred in overruling the demurrer to the first paragraph of the amended complaint, and that the court erred in each of its conclusions of law.

It is questionable whether or not appellants are entitled to have the question considered, raised by overruling their demurrer to the first paragraph of the amended complaint, in that counsel have not specifically, in argument, stated any objections to the said paragraph, or cited any authorities in support of the contention that the paragraph is insufficient. The fact that the court made a special finding of facts, stating its conclusions of law thereon, is sufficient to present every question that affects the interests of the contending parties, and it is unnecessary, therefore, for us to consider or pass upon the sufficiency of the pleadings.

Elisha King was the testator, and the father of the appellant Martha E. Matlock, and the grandfather of the appellee Mellie Lock. At the time the testator executed his original will he had one daughter, the appellant Martha E. Matlock, and three grandchildren, living, one of whom was the appellee Mellie Lock, and a second, childless wife. In his original will he made certain bequests to all of the persons named. Before his death, however, two of his grandchildren died without issue, and upon the death of each of them he executed a codicil to his will. After his death the appellant Martha E. Matlock qualified as executrix and trustee under the will, and before the commencement of this action, by an agreement between all of the parties in interest, the widow elected to take under the law, and not the will, and in this controversy she has no interest. The appellee Mellie Lock is the mother of one child living. Martha E. Matlock was made a party both in her individual and fiduciary capacity.

The facts to which the law must be applied, and the respective rights of the parties determined, as disclosed by the special finding of the court, are as follows: That Elisha King died testate on the 6th day of February, 1902; that he left a will and two codicils, which were duly executed and probated; that he left, as his only heirs, the appellant Martha E. Matlock, his daughter, and the appellee Mellie Lock, his granddaughter. The court further found that the will and the two codicils of the testator had been duly filed and admitted to probate; that the appellant Martha E. Matlock had qualified and was acting as executrix and trustee under the will.

The special findings set out in full the will and the two codicils, but it is only necessary for us to refer to those provisions of the will that are to be construed in the determination of the rights of the respective legatees. But to do so it is important, so as to gather the full intent of the testator, to set out such provisions of the will and codicils at some length.

By item 2 of the will the testator made certain and specific provisions for his wife, which included, among other things, a life estate in certain real estate of which the testator died seised, and which is specifically described. After such provisions made for the wife, said item No. 2 continues as follows:

“And at her death I will and devise in fee all of the above described real estate equally to my daughter, Martha E. Matlock, and my grandchildren, Ulysses, son of my son Henry C. King, deceased, Tennie B. King, daughter of my son, Samuel F. King, deceased, and Mellie McFatridge, daughter of my daughter, Indiana McFatridge, deceased. Provided that my above named grandchildren shall pay their part of all taxes and keep up all necessary repairs on their part of said real estate and not encumber by mortgages or sell their respective interest in said real estate before they shall severally arrive at the age of forty years. And provided further that if either of my above named grandchildren shall die before their arrival at the age of forty years leaving a child or children born in wedlock living, their respective child or children shall have their share in said real estate. And it is provided further that if either of my said grandchildren shall die without leaving any living child or children before their arrival at the age of forty years, that their interest in said real estate shall go equally to my said daughter, and if she is dead her part to her children and to my surviving grandchildren above named, or if they are dead then to their living children share and share alike. It is my will that my daughter, Martha E. Matlock, is to have her interest in said real estate without any reservation except as above set forth.”

By item 3 the testator devises and bequeaths to appellant Martha E. Matlock certain described real estate, upon which he fixed the value of $13,000, and in said item he also devises and bequeaths to her “one equal one-fourth part” in value of all of the other real and personal estate belonging to him, not otherwise disposed of in said will.

By item 4 he devises and bequeaths to his grandson Ulysses King certain real estate, specifically describing it. Upon this bequest and in the same item he made the following provision:

“Provided that he will pay all taxes and keep up all necessary repairs on all of the above described real estate, and not mortgage or in other manner encumber the same or any part thereof before he arrives at the age of forty years. I value said land at thirteen thousand dollars. I also give and devise unto the said Ulysses, the undivided one fourth part in value belonging to me all other property not otherwise disposed of by me upon the same terms and conditions as above set forth, (I mean by the word property both real and personal property not otherwise disposed of herein.) It is further my will that if he should die before arriving at the age of forty years leaving surviving him a child or children born in wedlock, that the above described real estate last described and all property herein bequeathed to him both real and personal shall go to his then living child or children. And it is further provided and is my will that if the said Ulysses shall die before his arrival at the age of forty years without leaving either a child or children, that the interest in my estate herein bequeathed to him shall go share and share alike to my said daughter and grandchildren surviving, or to their children then living. It is my will that the said Ulysses shall have at my decease immediate possession of all the real estate herein specifically willed him and the rents and profits thereof after the payment of all taxes and necessary improvements thereon, and the annual interest on the one fourth part of my personal property or rents of real estate not otherwise disposed of herein. It is my will that upon his arrival at the age of forty years that all restrictions above mentioned on his interest in my estate be removed.”

By item 5 he devises and bequeaths to his granddaughter Tennie B. King certain property, both real and personal, specifically describing it, and places upon it the following conditions: “She to have all the above property both real and personal upon the same terms and conditions as my grandson Ulysses herein set forth.”

By item 6 he devises and bequeaths to his granddaughter Mellie McFatridge certain real and personal property, describing the same, upon which he places a value of $13,000, and the following further bequest: “Also the one fourth part in value of all other real and personal property owned by me at my decease. She to have all of said real estate and personal property upon the same terms and conditions as that willed to my said grandson Ulysses King.” In this same item he charges all of the above-named heirs with specific advancements, giving the amount advanced to each one.

The final clause in the will is as follows: “My object in making this will is to make my said child and grandchildren equal in the final distribution of my estate.”

In codicil No. 1, executed on the 25th day of September, 1891, the testator recites the fact that, since the execution of his original will, his grandson Ulysses King had died, and by said codicil he made certain other provisions as follows: “I hereby devise and bequeath to my daughter Martha E. Matlock, all the real estate devised by Item 4 of said will to said Ulysses King and the same is to be charged to my said daughter at the sum of thirteen thousand dollars.” He then proceeds in said codicil to make certain devises and bequests to his granddaughters Tennie B. King and Mellie McFatridge in the following language:

“I devise to my grand-daughters Tennie B. King and Mellie McFatridge...