Pereira v. Pereira

Decision Date24 January 2013
Docket NumberNo. 04A05–1205–PL–241.,04A05–1205–PL–241.
Citation983 N.E.2d 605
PartiesWilliam PEREIRA and Joseph McConnell, Appellants–Plaintiffs, v. Monica PEREIRA, John LeFebre and Karen LeFebre, Appellees–Defendants.
CourtIndiana Appellate Court


William M. Pope, Mark J. Crandley, Barnes & Thornburg LLP, Indianapolis, IN, Attorneys for Appellants.

Judson G. Barce, Hunter J. Reece, Bonnie J. Adams, Barce & Reece, PC., Fowler, IN, Attorneys for Appellees.


BAILEY, Judge.

Case Summary

William Pereira and Joseph McConnell appeal a summary judgment order which denied their complaint to quiet title in real estate acreage bequeathed by Joseph Sleeper (“Sleeper”) and allowed inheritance of a share of the acreage by John LeFebre and Karen LeFebre. We affirm.


A single issue is presented for review: whether the trial court erred in granting summary judgment, based upon a construction of Sleeper's will to conclude that he had not devised a contingent remainder, subject to the condition of outliving a life tenant, but rather had made a gift to a class, which included John and Karen LeFebre's mother, with a life estate intervening.

Facts and Procedural History

Sleeper, who owned approximately 358 acres of land in Benton County, Indiana, executed a handwritten will on October 30, 1917 (“the Will”). Sleeper died in 1922 and the Will was submitted for probate on December 6, 1922.

Sleeper bequeathed to his wife, Eva Sleeper, a life estate in the acreage and, upon her death, a life estate to the children of Sleeper's friend, Ralph McConnell, specifically, Margaret McConnell and Joseph W. McConnell. Sleeper also designated alternative contingent beneficiaries to inherit the acreage in fee simple at the termination of the second life estate. In particular, the Will provided:

Fourth: I will and bequeath, at the death of my said wife, Eva C. Sleeper, to Margaret I. McConnell, and Joseph W. McConnell, children of Ralph W. McConnell, all the real estate I may own or die seized of situated in Benton County, Indiana, to have these rents and income from said real estate for and during their natural lives and should either of said children die before my said wife, Eva C. Sleeper, it is my will that the survivor shall inherit said rents and profits from said real estate, and at the death of both of said named children it is my will that said real estate shall pass to any child or children they may have surviving them, share and share alike in fee simple. Should said named children die without any issue left, it is my will that all of my said named and mentioned real estate shall be the sole and legal property of the Trustees of the Methodist Episcopal Hospital of the City of Indianapolis, Indiana, to have and to use the same if they may desire for said hospital use.

(App. 12.)

Eva Sleeper died on June 30, 1933, survived by both Margaret McConnell and Joseph W. McConnell. Thus, the McConnell siblings jointly inherited the second life estate.

Joseph W. McConnell died in November of 1989, survived by his children Joseph McConnell and Julia McConnell Tarr. Margaret McConnell died in January of 2011, survived by Monica Pereira, an adopted child, and William Pereira. Julia McConnell Tarr had died in September of 2007, survived by John LeFebre and Karen LeFebre (hereinafter, the Grandchildren).

On April 19, 2011, Joseph McConnell and William Pereira (hereinafter, the Children) filed a complaint to quiet title, naming as defendants Monica Pereira and the Grandchildren. The Estate of Julia McConnell Tarr moved to intervene. The parties, disputing the construction of the fourth paragraph of the Will, filed cross-motions for summary judgment.

On December 22, 2011, argument was heard on the cross-motions for summary judgment. On April 20, 2012, the trial court entered summary judgment, concluding that the Grandchildren could collectively receive a one-third share in the acreage (that portion which would have been inherited by their mother, Julia McConnell Tarr, had she survived at the termination of the life estate). 1 This was based upon the trial court's construction of the Will as “contemplat[ing] a generation skipping vesting process so that the death of either Margaret I. Pereira (McConnell) or Joseph W. McConnell establishes the class to which that ancestor's interest passes and thus closes the class by the ancestor's death and that both ancestors need not die before the class is determined.” (App. 6.)

The Children appeal.

Discussion and Decision
I. Standard of Review

In reviewing a trial court's ruling on summary judgment, we stand in the shoes of the trial court, and apply the same standards in deciding whether to affirm or reverse summary judgment. Warren v. Warren, 952 N.E.2d 269, 272 (Ind.Ct.App.2011). Summary judgment is appropriate if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Ind. Trial Rule 56(C). We may affirm a grant of summary judgment on any theory supported by the designated materials. Gilman v. Hohman, 725 N.E.2d 425, 428 (Ind.Ct.App.2000), trans. denied.

Here, the parties agree that there is no disputed issue of fact and that the question to be determined is one of testamentary intent. The interpretation, construction or legal effect of a will is a question of law to be determined by the court. In re Estate of Owen, 855 N.E.2d 603, 608 (Ind.Ct.App.2006). Accordingly, this Court owes no deference to the probate court's legal conclusions. Id.

The testator's intent is controlling, and is not to be frustrated so long as it is not contrary to law. Myers v. Ellerbusch, 746 N.E.2d 408, 409 (Ind.Ct.App.2001). “The paramount objective in construing a will is to determine and give effect to the testator's true intent as expressed in the will.” Id. In order to determine intent, the Court looks to the four corners of the will and the language used in the instrument. Carlson v. Sweeney, Dabagia, Donoghue, Thorne, Janes & Pagos, 895 N.E.2d 1191, 1197 (Ind.2008). When construing the language, the court should strive to give effect to each provision, clause, term, or word if possible. Id. A general intent in a will is to be carried into effect at the expense of any particular intent and where the testator has expressed conflicting intents, the most important prevails. Id.

II. Analysis

There is no dispute regarding the authenticity of the Will; nor are there relevant facts in dispute. The parties agree that the language of the Will conveys successive life estates and creates a contingent remainder in fee. A remainder is a future interest arising in a third person. Lewis v. Clifton, 837 N.E.2d 1016, 1018 (Ind.Ct.App.2005). A contingent remainder “is merely the possibility or prospect of an estate which exists when what would otherwise be a vested remainder is subject to a condition precedent, or is given to an uncertain person or persons.” Id. at 1019 (Ind.Ct.App.2005) (citation omitted). A remainder is vested when there is an immediate right of present enjoyment or a present fixed right of future enjoyment; that is, when it is given to an ascertained person and is not subject to a condition precedent. Bailey v. Bailey, 142 Ind.App. 119, 127, 232 N.E.2d 372, 378 (1967).

The disputed matter is the satisfaction of the contingency upon which Julia McConnell Tarr's interest would vest: whether it was upon her birth or whether she was required to outlive Margaret Connell, the last of the life tenants to die. If Julia McConnell Tarr received no interest or estate, then it could not be inherited by Grandchildren. The Children and Grandchildren ascribe different meanings to the phrase “and at the death of both of said named children it is my will that said real estate shall pass to any child or children they may have surviving them, share and share alike in fee simple.” (App. 12.)

According to the Children, the plain language requires that any child of the McConnell siblings must survive “both” the siblings in order to receive a share and because Julia McConnell Tarr did not survive her aunt, she was not a child they had surviving and Julia's estate and the Grandchildren have no claim to the acreage. The Children also observe that the Will employed language “share and share alike” as opposed to “per stirpes,” 2 suggesting that Sleeper did not contemplate inheritance by an additional generation.

The Grandchildren deny that the language of the Will “plainly” expresses the testator's intent to condition vesting upon the survival of all life tenants. According to the Grandchildren, “both” and they may be read as singular because an individual is commonly referred to as they and because Sleeper would not have anticipated that biological siblings would have children in common that they would have surviving. Appellee's Brief at 4. They also strenuously assert that the law prefers vesting to contingency and Sleeper's intention to convey an estate in fee simple 3 must be given effect.

The Grandchildren maintain that the trial court correctly found the Will to be ambiguous. They further contend that the trial court properly construed the Will to provide that Julia McConnell Tarr became a vested member of the remainder class at her birth or, at the latest, when her father, Joseph W. McConnell, died.

It has been observed: “Indiana law favors the early vesting of an estate.” Lewis, 837 N.E.2d at 1019. Nonetheless, a testator “undoubtedly has the right, within legal limitations, to fix the time of vesting of any estate created by him.” Hayes v. Second Nat'l Bank of Richmond, 176 Ind.App. 299, 301, 375 N.E.2d 647, 649 (1978). Ultimately, whether a particular estate or interest is vested or contingent depends upon the intention of the testator as interpreted from the will. Id.

The Grandchildren contend that Sleeper's intent of early vesting is evident from his conveyance “in fee simple.” Arguing that “the importance of the term ‘in fee...

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