Mountz v. Brown

• Decision Date: 04 October 1948
• Docket Number: No. 17764.,17764.
• Parties: MOUNTZ et al. v. BROWN et al.
• Court: Indiana Appellate Court

119 Ind.App. 38

81 N.E.2d 374

MOUNTZ et al.

v.BROWN et al.

No. 17764.

Appellate Court of Indiana, in Banc.

Oct. 4, 1948.

Appeal from Circuit Court, DeKalb County; Burr H. Glenn, Special Judge.

Action by William M. Brown and others against Karl Mountz, Jesse Mountz and George Mountz, executor of the will of Ettie V. Brown, deceased, to quiet title to certain real estate. From the judgment, defendants appeal.

Judgment affirmed.Mountz & Mountz and Brinkerhoff & Brinkerhoff, all of Garrett, and Dan M. Link, of Auburn, for appellants.

Atkinson & Sanders, of Auburn, and Springer & Angelone, of Butler, for appellees.

ROYSE, Chief Judge.

Daniel and Ettie V. Brown were, on the 21st day of August, 1925, an elderly childless married couple. On that day they both executed a joint will. It is as follows:

‘We, Daniel Brown, and Ettie V. Brown, Husband and Wife, of Butler, DeKalb County, Indiana, being of sound mind, and disposing memory, make and appoint the following to be Our Last Will and Testament, hereby revoking any and all former Wills made by either of us.

‘Item 1st. It is our will that all of our just debts shall first be paid from our estate.

‘Item 2. After the payment of any debts and obligations we or either of * * * owe at the time of death of either of Us, We hereby devise and bequeath all the residue of our estates, both real and personal, including all moneys, notes, or any other evidence of indebtedness due Us or either of Us to the Survivor of either Husband, or wife (namely), Daniel Brown, or Ettie V. Brown, all of the property of every kind, class, description, or nature, as aforesaid to be held and used by Us as we see fit.

‘Item 3. It is our will that if neither of us survive the other long enough to execute a will, then, and in that event we do hereby will and bequeath the whole of our estate as described above, to be divided as follows: to Ella Oberlin, wife of Richard Oberlin (deceased) the sum of five thousand Dollars, the same to be absolute property of the said Ella Oberlin, a sister of the said Daniel Brown, or her children, should she not survive Us, The said sum of Five Thousand Dollars, herein bequeathed to Ella Oberlin, shall be in addition to her share of the residue of Our Estate herein set forth. The remainder of Estate to be divided in six (6) equal parts, as named herein. (To Rose Kepler, One sixth,) (to Zelphina Mountz One Sixth) (to S. F. Mountz One Sixth), (to Wm. M. Brown, One Sixth), (to Ella Oberlin, one sixth), (and to Karl Mountz, now of Herford Texas, Jesse Mountz, now of Detroit Mich, and Walter Mountz, of Butler, Ind. One sixth) each of the said Karl, Jesse, and Walter Mountz, to share one third (1/3) each of this last one sixth, of said estate.

‘Item 4. It is our will that there shall be no other beneficiaries of this Estate, except those named herein, and further, should any named herein, or any other relatives attempt to set aside, or in any manner attack the validity of this will, then it is our will, that such persons and his or Her heirs, shall forever be procluded from taking from Our Estate.

‘Item 5. It is Our will should either of Us survive the other, then in that event it is Our request that this will shall not be probated, until the death of the latter, this for the reason that the Law provides that either Husband, or Wife, can elect to take under the Will, or Law, as they see fit.

‘Item 6. We hereby appoint as executors of this Our last will, William M. Brown, and S. F. Mounyz, to act as executors of this will, or if either of them should not survive, then in that event the survivor of them shall act as our executor and shall sell the-hole of Our real estate and covert the same into cash, and divide as herein set forth. Witness Our hands and seal this 21st day of August 1925.

‘Daniel Brown (seal)

‘Ettie V. Brown (seal)

‘Signed by Daniel Brown, and Ettie V. Brown, Husband and wife of Butler, Indiana, in our presence as their last will and testament and signed by Us as subscribing witnesses in their presence, and in the presence of each other this 21st, day of August 1925.

‘Bertha Swift

‘Charles E. Swift.’

Subsequently, on the 16th day of May, 1934, they entered into the following written contract:

‘This agreement, made and entered into this 16th day of May, 1934, by and between Daniel Brown and Ettie V. Brown, husband and wife, of Butler Indiana, Witnesses:

‘That whereas the said parties have heretofore entered into a certain joint will and contract, by which they agreed as to the final disposition of the property of which they shall die possessed and which joint will and contract was executed by each of them for a good and valuable consideration and is binding upon them, and which joint will and contract was by them executed and witnessed when executed by Charles Swift and Bertha Swift, his wife;

‘And whereas the said parties have mutually agreed and do now agree that the final distribution and disposition of their said property shall be made in accordance with the terms and conditions of the said joint contract and will;

‘And whereas the said parties desire to have mutually agreed that during the life time of them and the survivor of them the terms of said joint contract and will shall not take effect or become public and that the survivor of them shall take all of said property at the death of the other and hold the title to it absolutely so long as such survivor lives;

‘Therefore, in consideration of the mutual considerations resulting from the execution and performance of this agreement and the execution of the said several wills of the parties as herein provided for, it is agreed that contemporaneous with the execution of this agreement, and in consideration thereof, each of said parties shall execute a will whereby each shall devise and bequeath to the other, in the event of the survival of said other, all of the property both real and personal of which each shall die possessed and that the survivor shall take and hold the said property during the remainder of his or her life subject to the terms and conditions of the said joint will and contract, and holding said property in trust only to such extent as may be necessary to fully carry out the terms of the said joint will and contract and to fully protect the rights of all persons for whom provision is made and is to be made under the terms of said joint will and contract, and upon the death of the survivor of these parties, Daniel Brown and Ettie V. Brown, the said property then remaining of which these parties, either and both of them died possessed, shall be distributed as in said joint will and contract provided as if the said joint will and contract had been the last will and testament of each and both of these parties.

‘And each of these parties covenant and agree, in consideration, of the execution of the wills herein provided for and executed contemporaneous herewith, not to make any other or different disposition of any of their property except as provided for herein and agree to fully perform and carry out all of the terms and conditions of all of said agreements and wills, including said instrument referred to as said joint will and contract.

‘This agreement is executed in...