Robertson v. Burnett

• Decision Date: 04 February 1927
• Docket Number: No. 12616.,12616.
• Citation: 155 N.E. 178,86 Ind.App. 89
• Parties: ROBERTSON et al. v. BURNETT et al.
• Court: Indiana Appellate Court

86 Ind.App. 89

155 N.E. 178

ROBERTSON et al.

v.BURNETT et al.

No. 12616.

Appellate Court of Indiana, in Banc.

Feb. 4, 1927.

Appeal from Sullivan Circuit Court; Arthur E. De Baun, Judge.

Action by Louis J. Kixmiller, as executor, against Jennie Robertson, Elijah T. Burnett, and others, to construe the will of James O'Haver, deceased. From the judgment, defendant Jennie Robertson and others appeal. Affirmed.Hays & Hays, A. C. Owens, W. Paul Stratton, John S. Taylor, Wm. H. Bridwell, and George W. Buff, all of Sullivan, for appellants.

Charles D. Hunt, of Sullivan, for appellees.

NICHOLS, J.

Action to construe the will of James O'Haver, deceased. The complaint was filed by the executor who is now standing by ready to follow the court's construction. The particular question involved is whether, under item 4 of such will, the grandnieces and grandnephews of testator by birth, whose father or mother, as the case may be, predeceased testator, share in the residue of the estate along with the nieces and nephews surviving the testator, and the further question whether, if they do so share under item 4, the beneficiaries take per stirpes or per capita.

The court by its judgment construed the will to mean that it was the intention of the testator by item 4 of his will to give the residue of his estate to his nieces and nephews by birth and to those of his grandnieces and grandnephews by birth, who were children of deceased nieces and nephews by birth, except his grandniece Mrs. James Sinclair, who was given a special bequest in item 3 of said will; that said nieces and nephews and grandnieces and grandnephews, except Mrs. James Sinclair, should share equally in the residue of said estate under item 4, and that the said legatees all take per capita and not per stirpes. From this judgment, the nephews and nieces appeal.

By item 3 of such will the testator bequeathes to Mrs. James M. Sinclair, who was one of his grandnieces, the sum of $5 in cash, the same to be her full share of his estate.

Item 4 reads as follows:

“I hereby direct that all the property; both real and personal, of which I shall die seized or possessed be sold by my executor hereinafter named upon such terms as he may approve and as soon as the same can be done without sacrifice, and the entire proceeds, after the payment of items one, two and three of this will be divided equally between my nephews and nieces, by birth, except Mrs. James Sinclair, heretofore named in item three...