Quilliam v. Union Trust Co. of Indianapolis , 10867.

• Court: Indiana Appellate Court
• Writing for the Court: McMAHAN
• Citation: Quilliam v. Union Trust Co. of Indianapolis , 131 N.E. 428 (Ind. App. 1921)
• Decision Date: 02 June 1921
• Docket Number: No. 10867.,10867.
• Parties: QUILLIAM et al. v. UNION TRUST CO. OF INDIANAPOLIS et al.

131 N.E. 428

QUILLIAM et al.

v.UNION TRUST CO. OF INDIANAPOLIS et al.

No. 10867.^*

Appellate Court of Indiana, Division No. 2.

June 2, 1921.

Appeal from Circuit Court, Marion County; Louis B. Ewbank, Judge.

Action by Essie Delzell Quilliam and others against the Union Trust Company of Indianapolis and others. Judgment for defendants, and plaintiffs appeal. Reversed, with directions.George W. Galvin, of Indianapolis, for appellants.

John M. Bailey, Smith, Remster, Hornbrook & Smith and Paul Y. Davis, all of Indianapolis, for appellees.

McMAHAN, J.

Samuel Delzell died testate October 3, 1897. His will, dated August 31, 1893, was probated in Marion county shortly after his death, and, omitting the description of the real estate, is, in substance, as follows:

Item 1. Directs the payment of debts.

Item 2. “I will and direct that all of my improved real estate *** remain unsold during the lifetime of my daughter, Anna D. Hughes, and during the lifetime of her child or children, should any be born to her, and during the lifetime of her grandchild or children, or their descendants, until the expiration of a period of fifty years, after the date of the probate of my will, and at the expiration of said fifty years I will and direct that the said property be sold and the proceeds divided among those who, by the terms of this will, will be entitled to it; and further that no rental for more than one year in advance shall be collected for any of said real estate and that any and all payments and receipts for rental for more than one year in advance shall be void. My purpose in prohibiting the sale of the above-mentioned real estate for fifty years, is because I believe no better investment can be made, and that no better way could I provide for my beloved daughter, and protect her and her children and grandchildren from want. My unimproved real estate in Marion county, Indiana, may be sold by my executrix, and so much of my land near Brightwood as may be needed for railroad switching purposes; and in the event of my daughter's death without heirs of her body born to her, then, in this event (certain described real estate, including parts now in controversy) may be sold and the proceeds divided among those at that time entitled to it by the terms of my will.”

Item 3. Provides for the annual payment of $15 to Crown Hill Cemetery for the care of certain lots. Said payments to be made out of the rental of store at 37 East Washington street, Indianapolis, and to be a first lien on said real estate for a period of 50 years.

Item 4. Expresses it to be his will that the executrix erect a substantial four or five story brick building at 37 East Washington street, Indianapolis, using so much of $20,000 which he had on deposit in bank, and such additional sum from the income of his estate as may be necessary, and directing her to keep the buildings insured and in good repair.

Item 5. Provides that a certain lot in Vineville, Georgia “shall descend to my daughter, Anna D. Hughes, as hereinafter provided in item 6 of this will,” and providing upon the death of his daughter without children, her husband may occupy said premises for one year after her death and if she leave child or children he may occupy it until the youngest child is 21 years old.

Item 6. “Subject to the foregoing provisions and conditions I devise and bequeath to my beloved daughter, Anna D. Hughes, all my real and personal estate forever, provided however, that if my said daughter should die without issue, then it is my will that the property that she may have derived from my estate at the time of her death shall have descended to my nephews and nieces from my own blood, and the income and provisions derived therefrom divided equally among them and their descendants for the period of fifty years after the date of the probate of my will, and at the expiration of fifty years, all of said property shall be sold and the proceeds divided equally among my nephews and nieces of my own blood and their descendants share and share alike.”

Item 7. “Should my daughter, Anna D. Hughes, leave a child or children, the issue of her body, surviving her, then it is my will that all of the real and personal estate by her owned, derived from my estate, shall descend equally to her child or the survivors of them, being my grandchildren and such grandchildren or grandchild, shall not have the power or right to sell, incumber or convey the same, but the same shall descend in equal proportion to my great-grandchildren, if any there be, or the survivors of them, and should my grandchildren die without children, heirs of their bodies, then it is my will that the real estate derived from my estate shall descend to the descendants of my nephews and nieces of my own blood or the survivors of them.”

Item 8. “It is my will more fully expressed, that neither my daughter nor any of her children or grandchildren shall ever sell, convey or in any way incumber the real estate herein derived from my estate situated in Leavenworth, Kansas, Vineville, Georgia, and Marion county, Indiana, except as above accepted, nor anticipate the rental thereof for more than one year in advance until at the expiration of the period of fifty years after my death, and then said property shall be sold and the proceeds thereof divided among those entitled to it as above provided.”

Item 9. “It is my will that my daughter, Anna D. Hughes, subject to the specifications and bequests herein mentioned, during her lifetime, shall have the sole and exclusive possession and control of my real and personal estate, and shall receive and control all income and proceeds derived therefrom, to be by her kept and retained, for her own use and benefit, in her own discretion, without accounting to any one, and after her death then to whom the property may descend by the terms of my will, shall, during the period of fifty years during which time the property cannot be sold, be entitled to receive the income and proceeds for their own use and benefit.”

Item 10. Appoints his daughter, Anna D. Hughes, executrix.

Appellants, about 80 in number, filed their complaint, and later an amended complaint, against appellees, alleging that Samuel Delzell died testate October 3, 1897, the owner of certain real estate including that described in the complaint; that his will was duly probated, a copy being set out in full; that his daughter, Anna D. Hughes, died in June, 1918, without ever having given birth to a child; that upon her death appellants were the nephews and nieces of Samuel Delzell, and their descendants living at the death of Anna D. Hughes; by virtue of said will they upon her death became and were the owners in fee of the real estate described in the complaint, and entitled to possession thereof; that after the death of Anna D. Hughes the Union Trust Company was appointed executor of her estate, and was directed by the probate court to carry out the trust mentioned in her will, and that in assuming to carry out said trust appellees had wrongfully and without right entered into possession of said real estate, and was asserting claims and interests in the same antagonistic to the interest of appellants, and clouding their title, and asking that the title to said real estate be quieted in them.

A demurrer was sustained to this complaint. The parents of about 40 of the plaintiffs named in the complaint were living when the complaint was filed. A second amended complaint was then filed, in which the 40 whose parents were living were omitted. Otherwise the second amended complaint was the same as the one to which the demurrer had been sustained. A demurrer having been sustained to the second amended complaint, appellants, who were named therein as plaintiffs, excepted, refused to plead further, and judgment was rendered that they take nothing.

Appellants have filed two separate assignments of errors. In one all who were plaintiffs in the first amended complaint have joined and assigned as error the action of the court in sustaining the demurrer to the complaint, while those who were named as plaintiffs in the second amended complaint have assigned the sustaining of the demurrer to that complaint as error.

[1][2] The record does not show that any of the appellants excepted to the action of the court in sustaining the demurrer to the first amended complaint. There has been an attempt to show by a special bill of exceptions that an exception was taken to this ruling. This cannot be done. A bill of exceptions cannot bring into the record exceptions which are or should be a part of the record without a bill of exceptions. Where matters which are a part of the record without a bill of exceptions are only exhibited in a bill of exceptions copied into the transcript, and do not appear elsewhere in the transcript, they will not be considered on appeal. Harris v. State, 155 Ind. 15, 56 N. E. 916;Wilson v. State, 156 Ind. 631, 59 N. E. 380, 60 N. E. 1086;Cooney v. American Ins. Co., 161 Ind. 193, 67 N. E. 989. No question is therefore presented by the first assignment of error.

The second assignment calls for a construction of the will of Samuel Delzell hereinbefore set out.

The first contention of appellees is that the restrictions in the will, prohibiting alienation of the property for 50 years is void.

Section 3998, Burns' 1914, provides that:

“The absolute power of aliening lands shall not be suspended by any limitation whatever, contained in any grant, conveyance or devise, for a longer period than during the existence of a life or any number of lives in being at the creation of the estate conveyed, granted, devised and therein specified, with the exception that a contingent remainder in fee may be created on a prior remainder in fee, to take effect in the event that the person or persons to whom the first remainder is limited shall die under the age of twenty-one years, or upon any other contingency by which the estate of such...