Moore v. Livingston, 1069A188
| Citation | 265 N.E.2d 251,148 Ind.App. 275 |
| Decision Date | 29 December 1970 |
| Docket Number | No. 1069A188,No. 1,1069A188,1 |
| Parties | Harold MOORE, Harley Moore, Madys Curts, Freda Collmer, Estel Carter, Clarence Graffis, Appellants, v. Virgil LIVINGSTON, Executor of the Estate of Arthur M. Yantis, of Chicago, Illinois, et al., Appellees |
| Court | Court of Appeals of Indiana |
Lynn O'Neill, Logansport, Albert W. Ewbank, Indianapolis, for appellants; John S. Grimes, Indianapolis, of counsel.
Robert S. Justice, Logansport, for appellees, Robert S. Williamson, Jr., Esther Rudicel, Eleanor Koon and Samuel D. Williamson.
Following a hearing upon a petition to determine heirship the trial court in essence determined that certain Indiana farmlands were equitably converted into personalty by an Illinois resident's last will and testament, and that the proceeds from sale of the lands were thus distributable according to the law of the testator's domicile.
Arthur Yantis, who resided in Illinois at the time of his death December 18, 1964, executed his last will and testament in Indiana on February 25, 1954. According to the provisions of the will, Mr. Yantis ordered and directed his debts be paid as soon after his death as possible, appointed coexecutors and alternate executors, and specifically devised and bequeathed a dwelling house and its contents to his stepmother's niece. He also provided for disposition of the residue of his estate as follows:
'The proceeds obtained from the sale of such property, real and personal, I give and bequeath to my heirs at law and in the proportions as provided by law.'
Two days after the testator's demise, the will was admitted to probate in Cass County, Indiana. Letters testamentary were issued to Leland Smith, as executor, on December 28, 1964. On November 18, 1966, Mr. Smith filed a petition to determine heirship and to determine the proportions in the estate to which each heir was entitled. Answers to the petition were filed by the heirs closest to the deceased--six maternal first cousins and four children of deceased paternal first cousins. Proper notice, with personal service or service by mail, was given to all known heirs advising of the pending hearing. Upon consideration of oral argument and the briefs of counsel, the trial court held that distribution to the 'heirs at law' should be made pursuant to the law of Illinois. 1 The appellants subsequently filed a motion for new trial alleging the findings and decision of the trial court were not sustained by sufficient evidence and were contrary to law.
On appeal from denial of their motion for new trial the appellants argue there was no evidence of record upon which the court could enter a finding since only the pleadings were before the court. Because all of the appellants were determined to be heirs of the deceased we must assume that their charge is addressed to the trial court's determination of their respective portions of the estate. The trial court's declaration in that regard, however, was simply a matter of determining the applicable law and was not dependent upon the evidence.
The appellant further argues that it was error for the trial court to construe the will of the testator pursuant to a hearing to determine heirship. We do not find in the language of the will terms so ambiguous as to require application of construction principles. However, even if such ambiguities, are deemed to exist in the will, no error arises when the trial court construes the will in its attempt to determine heirship because:
'* * * (I)f a construction of the will is necessary to the determination of an issue properly before the court, the court may construe the will in connection with the determination of such issue. * * *' Ind.Ann.Stat. § 6--605 (1953 Repl.)
We, therefore, address ourselves to the more substantive of appellant's arguments.
Appellant's principal allegation of error, however, is that the doctrine of equitable conversion no longer exists in Indiana, and thus that its application here was contrary to law. The appellant argues that a careful reading of Ind.Ann.Stat. §§ 6--601(b) and 7--706(b), as they existed at testator's death and as found in Burns' (1953 Repl.), as well as a reading of State of Indiana v. Estate of Weinstein (1967), 141 Ind.App. 395, 228 N.E.2d 23, leads to the inescapable conclusion that the life of that doctrine ceased on the effective date of the 1954 Probate Code.
The Weinstein case adds nothing to our understanding of the present status of the doctine because that case holds only that the doctrine of equitable conversion is inapplicable in a determination as to whether a transfer took place where a contract for sale of realty held by entireties was incomplete at the time of the husband's death. Ind.Ann.Stat. § 6--601(b), (Burns' 1953 Repl.), merely states that the will passes the whole interest of the testator in realty devised. Ind.Ann.Stat. § 7--706(b) (Burns' 1953 Repl.), provides as follows:
'In all cases of a sale of real property by a personal representative, upon order of the court the surplus of the proceeds of such sale remaining on the final settlement of the account shall be considered as real property and disposed of among the persons and in the same proportions as the real property would have been if it had not been sold.' (Emphasis supplied)
The emphasized portion of § 7--706(b) indicates that the section is operable only when the sale is made 'upon order of the court.' 2 We, therefore, reject appellant's contention in this regard.
In contrast to the statutory duty of the executor to sell the testator's realty, if necessary, to satisfy debts of the estate, is the equally compelling duty of the executor to carry to fruition the clear intent of the testator as to disposal of his worldly possessions and holdings. The former duty must be in strict conformance to the law, the latter duty also is one of law but one which is enhanced by principles of equity. It is the latter duty with which we are here concerned.
That the doctrine of equitable conversion is as viable today as before the 1954 Probate Code became effective seems without serious challenge. As the leading Indiana authority on the law of probate cncludes:
* * *' 1 Henry's Probate Law, ch. 11, § 8 (1970) Supp.)
To constitute an equitable conversion of realty devised by will into personalty, the intent that such conversion is to take place at the time of the death of the testator must be shown by the will. 5A Thompson on Real Property § 2631. It seems clear that the necessary intent must be manifested by a direction in the will that the conversion take place. As this court said in Nelson v. Nelson (1905), 36 Ind.App. 331, 336, 75 N.E. 679, 681:
'It is the direction of the testator that the conversion shall be made which supports the fiction, and not the actual change of the property into money * * *'
A mere declaration in the will that land is to be converted is not sufficient to invoke the...
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