Partner v. Citizens' Loan & Trust Co.
| Decision Date | 05 October 1904 |
| Docket Number | No. 20,167.,20,167. |
| Citation | 163 Ind. 303,71 N.E. 894 |
| Parties | PARTNER v. CITIZENS' LOAN & TRUST CO. et al. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Boone County; I. M. Kelsey, Special Judge.
Suit by the Citizens' Loan & Trust Company, administrator, against William Partner and others. Judgment for plaintiff. Defendant Partner appeals. Transferred from the Appellate Court under Act March 13, 1901 (Acts 1901, p. 590, c. 259; Burns' Ann. St. 1901, § 1337u). Affirmed.
P. H. Dutch, for appellant. T. J. Terhune, Higgins & Holloman, Frank C. Reagan, and A. J. Shelby, for appellees.
The will of David A. Caldwell, which was duly admitted to probate, contained, among other provisions, bequests in these words:
“To my grandson, John A. Caldwell, in addition to Three Hundred ($300) or more dollars in cash and 95.20 acres of land, all heretofore given, I will and bequeath him Five Hundred Dollars ($500) of bank stock.
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“To David Paul Caldwell, son of Albert N. Caldwell, in addition to 12.32 acres more or less of land (if not otherwise conveyed during my life), I will and bequeath Five Hundred ($500) in bank stock.
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“To William Partner, surviving husband of said Martha A. [a deceased daughter of the testator], I will and bequeath Five Hundred Dollars ($500) in money out of my personal estate over and above what he may have received heretofore.”
Eight other like bequests of bank stock, of $500 each, were made by the testator. A controversy having arisen between the persons to whom the bank stock was bequeathed, and some of the other beneficiaries under the will, this suit was brought by the appellee the Citizens' Loan & Trust Company, administrator of the estate of David A. Caldwell, with the will annexed against all the beneficiaries under the will, to obtain a construction of that instrument. Issues were formed, and upon a trial by the court there was a finding and judgment declaring that the persons to whom the bank stock was devised were entitled to have the same transferred to them at its par value, subject to certain conditions, which need not be considered. William Partner, who was one of the defendants, and to whom the testator bequeathed $500 in money, appeals.
The first, second, and third errors assigned present no question for review by this court. The finding of the court was a general one, but the first, second, and third errors assigned are in the nature of exceptions to the conclusions of law drawn from the finding and expressed in the judgment. The first assignment is in these words: “The court erred in finding that John A. Caldwell, Clyde Caldwell,” etc., “*** are each to have and receive five shares of said bank stock, and the court further erred in finding that said above-named legatees were the sole owners of said bank stock in said will, and that they own the same share and share alike.” These objections cannot be presented in the form of independent assignments of error, and therefore will not be further noticed. The second and third assignments are substantially in the same form.
The question of the proper construction of the clauses of the will which are in dispute is, however, properly raised by the fourth assignment of error, which challenges the correctness of the ruling of the court on the motion for a new trial; one of the grounds of that motion being that the finding was contrary to law. The evidence is in the record, and the will itself is the principal item of the proof.
The objection...
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