Osburn v. Murphy

• Decision Date: 12 November 1963
• Docket Number: No. 19687,No. 2,19687,2
• Citation: 193 N.E.2d 669,135 Ind.App. 291
• Parties: Pearl OSBURN, Administratrix of the Estate of Hayes Osburn, deceased, et al., Appellants, v. Clarence MURPHY et al., Appellees
• Court: Indiana Appellate Court

Page 669

193 N.E.2d 669

135 Ind.App. 291

Pearl OSBURN, Administratrix of the Estate of Hayes Osburn deceased, et al., Appellants, v. Clarence MURPHY et al., Appellees.

No. 19687.

Appellate Court of Indiana, Division No. 2.

Nov. 12, 1963.

Frank I. Hamilton, Greensburg, for appellants.

McCarty & O'Connor, Virgil J. McCarty and Thomas J. O'Connor, Brookville, John H. Himelick, Connersville, for appellees.

PFAFF, Judge.

Appellants by this action sought to quiet the title to certain real estate. The court, upon request, made a special finding of facts, stated conclusions of law thereon, and rendered judgment adverse to appellants.

George R. Osburn died testate in 1909. After a bequest of all personal property to his son, William R. Osburn, his will provided:

'Item Three: I will, give, devise and bequeath unto my son, William R. Osburn, during his natural life all of the real estate of which I may die the owner, he to have the control, rents, issues and profits of the same so long as he lives.

'Item Four: I hereby appoint and constitute my son, William R. Osburn, as sole Executor of this will, hereby directing that he be not required to give any bond or to file any inventory of the assets of my estate. And I further grant unto him full power to dispose of the real estate on which I may die the owner of, and which is bequeathed to him in Item Three of this will, as therein provided. I hereby grant unto him full power to dispose of said real estate so owned by me at my death by will to take effect at his death. It is my intention by this item to grant unto my son, William R. Osburn, the power to disposition of said real estate by will, but not grant unto him power to sell and convey said real estate by deed during his lifetime. And that the power of disposition hereby given is confined solely in giving him the power to dispose of said real estate by will to take effect at his death.'

There was no residuary clause.

When George R. Osburn died in 1909, his son, William R. Osburn, was his sole and only heir at law. William R. Osburn executed his will on January 31, 1946, and died on December 14, 1947. Item 6 of his will provides:

'I give and bequeath for and during their natural lives all the real estate which I may die sized of the Ululah Cranor Addison, Clarence Murphy, Loren Murphy and Kathleen Murphy Cook, they to receive the income derived from said property share and share alike. Upon the death of any of the above named then his or her share shall be vested in the survivor or survivors equally, so long as they shall live. Upon the death of all of the above named Ululah Cranor Addison, Clarence Murphy, Loren Murphy and Kathleen Murphy Cook, said real estate shall be vested in Marvin Eugene Cook, the son of Kathleen Murphy Cook. Should the said Marvin Eugene Cook be not living at the time of the death of above named four, who have been given a life estate in said real estate, then same shall be vested in his lawful issue, if any. And if he should not be nor have any lawful issue then same shall go to any other lawful issue of Loren Murphy and Kathleen Murphy Cook that may be living at that time. In the event that such a situation should exist that Marvin Eugene should be deceased without issue and that Loren Murphy and Kathleen Murphy Cook should neither have any other living issue at said time, then said real estate shall be vested in the Maple Grove Cemetery, Brookville, Indiana. During the lifetime of the said Ululah Cranor Addison, Clarence Murphy, Loren Murphy and Kathleen Murphy Cook, my executor hereinafter named shall have the power and right to rent said farm and real estate and divide the proceeds equally among said four or any of the survivors, and I direct that the said Ululah Cranor Addison shall have a home on said real estate as long as she shall live. Neither of said four shall have the right or power to mortgate or sell their rights in said real estate.'

It is appellants' position that William R. Osburn did not by his will exercise the power of appointment given him by his father's will, and that upon his death the fee simple title to the real estate which had been owned by his father became absolute in the descendants of the heirs at law of George R. Osburn who were alive at the time of the death of William R. Osburn.

Appellees' position is that Item 6 of William R. Osburn's will does indicate an intention to exercise the power of appointment given him in his father's will, and that if it does not, then George R. Osburn died intestate as to the interest in real estate not disposed of, and that such interest went to his sole heir at law determined as to the time of his death, that is, his son, William R. Osburn, and hence passed under the will of William R. Osburn.

In construing and interpreting a will, the governing factor is the intention of the testator as expressed and shown by the language used, so long as it does not interfere with established rules of law. Effect is to be given to the manifest intent of the testator as deduced from the language used, read in the light of the circumstances surrounding the testator at the time of its execution.

Judge Kelley, speaking for this court in the case of Trust of Paszotta v. Calumet Nat. Bk. (1961), 131 Ind.App. 604, 172 N.E.2d 904, said:

'It is a long established legal principle in this state that in construing a will the governing factor is the intention of the testator as expressed and shown by the language thereof, and the primary purpose of such construction is to ascertain and give effect to such intention, so long as the same may not interfere with the established rules of law. In Hutchinson's Estate et al. v. Arnt, Administratrix et al., 1936, 210 Ind. 509, on page 518, 1 N.E.2d 585, on page 588, 4 N.E.2d 202, 108 A.L.R. 530, the rule is expressed in this wise:

"But the purpose in construing a will is to ascertain and give effect to the intention of the testator, so long as the same may not interfere with the established rules of law. This purpose is to be ascertained upon a consideration of the will in its entirety, and words and expressions in the will are to be liberally construed and interpreted to this end. * * *

The object is to discover the testator's intention from all the language of the will. The meaning which the testator intended to convey, by the use of particular words and expressions, will be determined from their relationship to other words and expressions used, and, when his intention is discovered, it will be enforced, notwithstanding that a meaning broader or narrower than is usual be given to particular words and phrases.'

'See, also, Curry et al. v. Curry et al., 1914, 58 Ind.App. 567, 576, 105 N.E. 951, 955. 'The intent of the testator is recognized by all the authorities as being the polar star to which the courts must always look in construing a will'; Reeder et al. v. Antrim, 1915, 64 Ind.App. 83, 91, 110 N.E. 568, 112 N.E. 551; Mundhenk v. Bierie et al., 1922, 81 Ind.App. 85, 89, 135 N.E. 493. Effect must be given to the manifest intent of the testator as deduced from the language of the will 'read in the light of the circumstances surrounding him (the testator) at the time of its execution.' (Emphasis and bracketed words supplied), Billings v. Deputy et al., 1925, 85 Ind.App. 248, 252, 146 N.E. 219, 221; Beck et al. v. Dickinson, [Executor] 1934, 99 Ind.App. 463, 467, 468, 192 N.E. 899.' In 29 I.L.E., Wills, §§ 173, 175, pp. 321-323, 326, it is stated:

'In the construction and interpretation of a will the intention of the testator is to be ascertained. The cardinal or paramount rule in the construction of a will is to ascertain the intention of the testator and give it effect as long as it is not prohibited by law. Accordingly, in construing a will the primary object or purpose is to ascertain and give effect to the intention of the testator if it does not violate some positive rule of law.

'In other words, the intention of the testator, unless violative of some settled rule of law or public policy, must govern or prevail, and must be given effect. In accordance with this rule, technical rules of construction must give way to the intention of the testator.

'In the construction of a will, the general intent of the testator will be carried into effect at the expense of any particular intent, provided such general intent is consistent with the rules of law.

'* * *

'The court, in construing a will, should, as far as possible, assume the standpoint of the testator and place itself in the testator's position at the time of the execution of the will.

'In addition to considering the language and provisions of the will, the court will, when necessary in order to ascertain the testator's intention, consider circumstances and conditions surrounding the testator when the will was executed, and if the language or terms of a will are ambiguous, the testator's intention may be arrived at by considering the circumstances under which the will was executed. So, where the testator's intention is obscure, circumstances and conditions surrounding the testator at the time the will was made, his manner of living, and relationship of the parties involved, may be looked to as aid in construction. However, effect may not be given to an intention proved by surrounding circumstances without regard to the will, since the right to dispose of property by will is limited by the...