Nation v. Green

Decision Date05 January 1917
Docket NumberNo. 9284.,9284.
Citation114 N.E. 895
PartiesNATION et al. v. GREEN et al.
CourtIndiana Appellate Court

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Howard County; Joseph Combs, Special Judge.

Proceedings by William B. Green and another, as executor and executrix of the last will of Lucinda E. Foreman, deceased, against Barbara Nation and others for the sale of real estate of testatrix to pay debts. From a judgment directing the sale and the payment of certain claims from the proceeds, Barbara Nation and the other defendants who were residuary devisees of testatrix appeal. Appeal dismissed.William C. Overton and John B. Joyce, both of Kokomo, for appellant Wright. Benjamin F. Harness and Barnabas C. Moon, both of Kokomo, for other appellants. Blacklidge, Wolf & Barnes, of Kokomo, and Richard L. Ewbank, of Indianapolis, for appellees.

HOTTEL, J.

The questions which appellants seek to present and have determined by this appeal arose in a proceeding to sell real estate to pay the debts of Lucinda E. Foreman, deceased, hereinafter referred to as “L. F.” The petition to sell was filed by William B. Green and Della Green, executor and executrix of the will of said decedent, in which capacity they will be designated as “G. & G., Ex.,” but when referred to as individuals (in which capacity they are not parties) they will be designated as “G. & G.” Barbara Nation, Florence Blair, Grace Gemmecke, William Nation, Edna Nation, and Geneva Nation were defendants to said petition, and are hereinafter collectively designated as appellants. Mabel Scherer and Wilma N. Wright were also defendants to said petition, and are hereinafter referred to as “S.” and “Wilma,” respectively. S. was defaulted. Wilma and Geneva Nation were minors, and an answer in general denial was filed for them by a guardian ad litem appointed by the court. The other appellants filed an answer in general denial. There was an agreement approved by the court that all defenses admissible under any state of the pleadings might be proven under the general denial. Under the issues thus tendered the cause was submitted to the court for trial, with a request for a special finding of facts and conclusions of law thereon. All the questions affecting the merits of the appeal are presented by assigned errors (and cross-errors) which respectively challenge one or more of the conclusions of law.

The facts found by the court are, in substance, as follows: L. F. died testate in Howard county, Ind., on April 18, 1914. On March 30, 1914, the day on which the deeds and will hereinafter referred to were made, she was alive and the owner of and in possession of the following described real estate in Howard county, Ind. (we abbreviate description and give each parcel a number, and such respective descriptions when hereinafter referred to will be indicated by such respective numbers):

(1) The N. W. 1/4 of the N. W 1/4 of S. 34, T. 24 N., R. 5 E., except 13 1/2 acres off of the east side of said tract, of the probable value of $5,000.

(2) 37 1/2 feet off the west side of lot No. 6 in that part of Greentown surveyed by Charles O. Fry, and known as Fry's survey, of the probable value of $1,250.

(3) The S. W. 1/4 of S. 27, T. 24 N., R. 5 E., except 60 acres off the west side thereof, being 100 acres.

(4) Also the following 100-acre tract, to wit: 40 acres off the west side of the S. W. 1/4 of S. 27, T. 24 N., R. 4 E., and 60 acres off of the east side of the S. W. 1/4 of said section.

L. F. was twice married, her first husband being Henry W. Foreman, from whom she inherited the 226 1/2 acres of land above described. After his death she married William E. Wright (hereinafter referred to as W.) L. F. and W., while husband and wife, by proper proceedings in court adopted as their child Wilma, then a child of tender years. Later L. F. procured a judgment and decree of divorce from W., in which judgment her surname was changed to that of Foreman, and she was given the care and custody of Wilma. Thereafter, on March 30, 1914, L. F. called an attorney and had prepared the following deeds and will which she signed and executed as hereinafter set out:

(1) She made a deed to G. & G., in which she conveyed to them, “for and in consideration of love and affection and other considerations hereinafter expressed,” 100 acres of land, being tract No. 4, supra, such deed containing the following further provisions:

“The said grantor, however, reserves unto herself all the rents, profits, and income of said real estate, with the right to control the same for and during her natural life, the said grantees having the right to take possession thereof at the time of the death of the grantor. If the grantor, who is now aged, shall become in such condition mentally and physically that she cannot manage or control her own affairs, or take proper care of herself, said grantees shall take her, together with Wilma, into their home and board them and give them a good and comfortable home and care for them as members of their family, and furnish grantor with such medical attention and services as she may require, free of charge to her. The obligation to take Wilma into their home and look after her wants shall be obligatory upon grantees only until Wilma reaches the age of twenty-one years, or until she shall marry, if that be before she reaches twenty-one years of age. If grantees shall fail to carry out all the conditions and considerations upon which this conveyance is made, they shall forfeit the title to said real estate.”

This deed was signed, acknowledged, and recorded March 30, 1914. The value of the 100 acres therein conveyed was then and is now $15,000.

(2) L. F. made a deed in which, for and in consideration of love and affection, she conveyed to Wilma the 100-acre tract No. 3, supra, and which deed the court finds was executed “in connection with and as part of her will hereinafter set out,” and that such will and deed were placed in the same envelope by L. F., and were then placed in the possession and care of James C. Blacklege, and were never in the possession of any other person. Testatrix intended by said deed to pass title to the grantee, Wilma, conditionally, that is to say, on the condition that the said grantee should live to the age of 21 years, and if she died before becoming that age, said deed was not to pass title, but was to be destroyed, and the property to be by the executors disposed of under the will, and the executors were, during the minority of the grantee, to hold said land in trust for her. This 100 acres was at the time of such conveyance, and now is, of the value of $17,000.

L. F. continued to be the owner of all the real estate hereinbefore described up to her death, subject only to the conveyances supra. She died the following month, April 14, 1914, testate. Her will was admitted to probate April 22, 1914 and is as follows: (We abbreviate and omit unnecessary repetition):

Item 1. I will and direct that all my just debts and funeral expenses shall be paid from my personal property, if there be a sufficient amount, by my executor, hereinafter named. (2) I have this day made and executed to G. & G. a deed to 100 acres of land in Howard county, Indiana, which contains certain conditions and stipulations as to the consideration upon which the same is executed. (3) I have also this day executed a deed to my foster daughter, Wilma, for 100 acres of land in Howard county, Indiana, described as follows: [Tract No. 3, supra]-and have placed the same with this my last will and testament, and I hereby release and relinquish all right and control over and to said deed, to my executor, hereinafter named, it being my desire and I direct that said deed shall be taken by him and placed of record, as hereinafter set forth. If I should die before Wilma reaches the age of twenty-one years, such deed shall not be delivered to her until she reaches that age. If Wilma should die before reaching such age, then I desire and direct that said deed be destroyed by my executor, and the land described therein shall be disposed of under the terms of this will as hereinafter provided. However, if Wilma shall reach the age of twenty-one years, said deed shall be delivered to her, as hereinafter stated. I further direct that said deed shall be treated and acted upon as one of the provisions of this, my last will and testament, and it shall be delivered and recorded, as herein directed. It is my intention that title in and to said real estate shall vest in said Wilma, either by virtue of said deed or by this will, provided she lives to be of the age of twenty-one years, and, in the event she does not, then either she nor her heirs shall have any interest whatever in said real estate, except in the manner provided in Section 7 of this will. (4) All of the residue of my estate, of every kind and character, I will and devise to my sister, Barbara Nation, for life, from which she will receive the rents, profits and income for and during her natural life, whether the same be real estate or personal property, and all of said residue shall be placed in the hands of my executor, who shall manage and control it and pay the net income thereof to the said Barbara so long as she may live. (5) At the death of my said sister, I will and direct that my executor divide the said property hereby placed in trust for her, between her children who may be living at the time of her death, share and share alike, and the children of any of her children that may be dead at said time, that is, the children of the deceased parent taking what the parent would have received if living. (6) I further direct that the 100 acres of real estate which I have devised to Wilma be considered as a part of the residue of my property, only in case she *** shall not live to reach the age of twenty-one years. (7) Should I die before Wilma reaches said age I will and direct that said real estate be held by my executor in trust for Wilma until she attains...

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3 cases
  • Baker v. Johnson
    • United States
    • Indiana Appellate Court
    • 27 d2 Março d2 1923
    ...thereon. Coburn v. Sands (1897) 150 Ind. 141, 48 N. E. 786;Neil v. Turner (Ind. App. 1919) 125 N. E. 228. See, also, Nation v. Green (Ind. App. 1917) 114 N. E. 895, subsequently transferred to the Supreme Court for want of jurisdiction. For the same reason the finding of erroneous facts wil......
  • Baker v. Johnson
    • United States
    • Indiana Appellate Court
    • 27 d2 Março d2 1923
    ... ... Coburn v. Sands ... (1897), 150 Ind. 141, 48 N.E. 786; Neil v ... Turner (1919), 77 Ind.App. 78, 125 N.E. 228; see, ... also, Nation v. Green, Exr. (1917), (Ind ... App.) 114 N.E. 895, subsequently transferred to the Supreme ... Court for want of jurisdiction. For the same ... ...
  • Nation v. Green
    • United States
    • Indiana Appellate Court
    • 26 d2 Junho d2 1917
    ...Circuit Court, Howard County; Joseph Combs, Special Judge. On petition to transfer to Supreme Court. Granted. For former opinion, see 114 N. E. 895.Harness & Moon, of Kokomo, for appellants. Blacklidge, Wolf & Barnes, of Kokomo, and R. L. Ewbank, of Indianapolis, for appellees.HOTTEL, C. J.......

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