McAvoy v. Sammons

• Decision Date: 20 March 1967
• Docket Number: No. 1,No. 20569,20569,1
• Citation: 140 Ind.App. 552,224 N.E.2d 323
• Parties: Joseph Ernest McAVOY, Jr., Charles Eugene McAvoy, Alice MaAvoy Altig, Grace B. McAvoy, Lois Ann McAvoy Dugan and Mollie Catherline McAvoy, Appellants, v. George F. SAMMONS and R. B. McAvoy, Co-Executors of the Estate of Io Eva Unger, deceased, R. B. McAvoy, Homer F. McAvoy, Kenna S. McAvoy, Ocie McAvoy Kurtz, and Ua McAvoy Evans, Appellees
• Court: Indiana Appellate Court

Page 323

224 N.E.2d 323

140 Ind.App. 552

Joseph Ernest McAVOY, Jr., Charles Eugene McAvoy, Alice MaAvoy Altig, Grace B. McAvoy, Lois Ann McAvoy Dugan and Mollie Catherline McAvoy, Appellants, v. George F. SAMMONS and R. B. McAvoy, Co-Executors of the Estate of Io Eva Unger, deceased, R. B. McAvoy Homer F. McAvoy, Kenna S. McAvoy, Ocie McAvoy Kurtz, and Ua McAvoy Evans, Appellees.

No. 20569.

Appellate Court of Indiana, Division No. 1.

March 20, 1967.

Rehearing Denied April 4, 1967.

Bower & Bower, Kentland, for appellants.

George F. Sammons, George M. Sammons, Sammons & Sammons, Kentland, for appellees.

PRIME, Judge.

This appeal for the construction of a will is before us on stipulated facts which are as follows:

Io Eva Unger died testate on November 30, 1964. She had seven brothers and sisters. Five were living when she made her will on October 30, 1964, and when she died on November 30, 1964. One of the brothers died in 1953 and one in 1958.

The suit was brought in the lower court by the heirs of the two deceased brothers, to construe the will and determine that these heirs should share in the estate.

The provision of the will over which this controversy is waged is Item VI which reads:

'I devise to my brothers and sisters, living at the time of my death, or to the heirs of brothers and sisters who may precede me in death all of my real estate in the County of Benton, State of Indiana, described as follows: * * *'

We now have the task of determining what the language means and who shall share in the estate. The trial court held that the devise was to the living brothers and sisters and that the hrirs of the deceased brothers should not share and that it was the intention of the testatrix to exclude the heirs of the two brothers who died prior to the execution of the will.

This entire appeal concerns itself with the proper construction to be placed upon Item VI of the will. There are conflicting rules of construction concerning a class gift which provide for an alternative gift for a class member who dies before the testator. One rule includes the heirs of any class member dead before execution of the will; the other excludes such heirs.

We have here language which is ambiguous and susceptible of being read as disclosing contrary intentions. The question is which of the rules we should follow.

In Gardner v. Knowles, 48 R.I. 231, 136 A. 883, the will read as follows:

'I give, devise and bequeath all the rest and residue of my estate both real and personal * * * unto my brothers and sisters, in equal shares * * * In the event of the death of any of them, leaving children, this his or her share to be divided equally among his or her children.'

At the time of the execution of the will, a brother had died leaving a child surviving. Observing that the testator at the time he executed his will was aware that his brother had died leaving a child surviving, the court found that the failure specifically to exclude the child of his deceased brother warranted the conclusion that there was an intention to include her. The rationale was that if the testator's intention had been otherwise he would have used language which clearly expressed that intention.

'* * * In our opinion, the rule of Gardner v. Knowles, supra, while not that generally prevailing, * * * is preferable for the reason that no valid reason suggests itself as to why in the absence of some special circumstances the children or issue of a class member dead when the will was executed are any less important to a testator than those of a potential class member dying thereafter and that the date of death is immaterial so long as it occurred prior to the time fixed for distribution. * * *

We hold, therefore, that absent a manifestation of a contrary intention, a substitutional gift of the share of a deceased member of a described group is effective even though that member died prior to the execution of the will.' Manufacturers National Bank v. McCoy (1965) R.I., 212 A.2d 53.

Discussing conflicting views in England; Casner in American Law of Property observes:

'The decisions in the United States offer no better guide in the solution of cases in which the language is ambiguous as to the inclusion of the issue of a person, otherwise within the class, who is dead when the will is written. * * * some effort should be made to suggest a reasonable basis for solving these problems when they arise under ambiguously phrased documents * * * under these circumstances, what is the reasonable assumption to make? In answering this question, bear in mind that all these gifts are to some group related to the testator--his children, his brothers and sisters, his nephews and nieces, or his cousins and the issue of any who shall have died. The testator has clearly evinced an intention to benefit to some extent the issue of the primary group described. In the absence of some special factor throwing some light on the problem, is there any good reason that can be advanced why the average testator would choose among the issue of the primary group on the basis of the time of death of a person otherwise in the class primarily described? It is suggested that there is no good reason. Thus, in the absence of factors pointing to a contrary result, it should always be assumed that in making an alternative gift in favor of the issue of any deceased person, otherwise within the class, the object of the testator is to assure equal division among the branches of his relations designated, and the branch represented by the issue of a class member, dead when the will is executed, is just as important to the testator as the issue of any other class member who dies later. The cases which proceed on this assumption are on the sounder ground.' Casner, American Law Property Part 22 § 22.51, 405--408; Fatheree v. Gregg (1960) 20 Ill.2d 620, 170 N.E.2d 600...