Runyan v. Rivers

• Decision Date: 16 October 1934
• Docket Number: No. 14771.,14771.
• Citation: 192 N.E. 327,99 Ind.App. 680
• Parties: RUNYAN v. RIVERS.
• Court: Indiana Appellate Court

99 Ind.App. 680

192 N.E. 327

RUNYAN

v.RIVERS.

No. 14771.

Appellate Court of Indiana, in Banc.

Oct. 16, 1934.

Appeal from Montgomery Circuit Court; Edgar A. Rice, Judge.

Proceeding by William G. Rivers, executor of the estate of Johanna Biddle, deceased, for distribution of the residuary estate. From a judgment overruling the exceptions of Verne Edith Runyan to a portion of the executor's final report and confirming such report, she appeals.

Reversed, with instructions.

Wm. W. Kummings and Crane & McCabe, all of Crawfordsville, and Clyde H. Jones, of Indianapolis, for appellant.

Foley & Foley, of Crawfordsville, for appellee.

WOOD, Judge.

Johanna Biddle died testate, a resident of Montgomery county, Ind. At the time of her death she left surviving her neither father or mother, husband or children or their descendants, nor brothers or sisters. Her nearest relations surviving her were children of her deceased brothers and sisters.

The only question presented by the record for our consideration is the construction to be placed upon item 6 of the last will and testament of the testatrix, which reads as follows: “Item. 6. The residue of my part of our estate I want divided equally between the heirs of my deceased brothers and sisters, Abigal Grennard, Lucreta Bunnel, Dennis Rusk and Squire Rusk.”

The appellant was the sole and only surviving child of Squire Rusk. Dennis Rusk and the other two sisters each left several children or the descendants of children surviving at the date of the death of the testatrix.

Appellee, as executor of the will, filed his final report, in which he proposed to distribute the residuary estate among the nephews and nieces and descendants of deceased nephews and nieces per capita. Appellant filed exceptions to that portion of appellee's report in which he set out the proposed distribution of the residuary estate in the manner above indicated, contending that the distribution thereof should be made per stirpes, between the heirs of the brothers and sisters of the testatrix. Upon trial being had upon the issues tendered by the final report and exceptions thereto, finding was made and judgment entered overruling appellant's exceptions and confirming appellee's final report.

Appellant filed a motion for a new trial; the only causes alleged necessary for our consideration being that the decision of the court was contrary to law and that the decision of the court was not sustained by sufficient evidence. This motion was overruled, and this ruling is the only alleged error which the appellant assigns for reversal.

[1][2] The intention of the testatrix respecting the distribution of her residuary estate must control the solution of the question presented by the record. Such intention must be ascertained from all the language used in the will and from surrounding circumstances. West v. Rassman (1893) 135 Ind. 278, 34 N. E. 991;Porter v. Union Trust Co. (1915) 182 Ind. 637, 108 N. E. 117, Ann. Cas. 1917D, 427. We find no language in the will under consideration from which to ascertain the intention of the testatrix except that contained in item 6, heretofore set out. From the record it appears that Squire Rusk left one heir, a niece of testatrix. Dennis Rusk left thirteen heirs, including nephews, nieces, greatnephews, and greatnieces of testatrix. Abigal Grennard left fourteen heirs including nephews, nieces, greatnephews, greatnieces, great greatnieces, and one great great greatniece of testatrix. Lucreta Bunnel left ten heirs including newphews, nieces, greatnephews, greatnieces, great greatnephews, and great greatnieces of testatrix, making a total of thirty-eight persons among whom the court distributed the residue of the estate.

Decisions discussing the right of beneficiaries under wills to take per stirpes or per capita are in conflict. This conflict is not due to a difference in principles of construction, but to the application of those principles to the particular will, and the surrounding circumstances which the court has before it for examination. We shall endeavor to ascertain the principles and rules of construction which have been adopted and applied by our Supreme and Appellate Courts in cases heretofore decided, where the facts were somewhat similar to those involved in the instant case, and distribution per stirpes and per capita was discussed, and from them determine the construction to be placed upon the will now before us.

[3][4][5] “To be divided equally,” may be applied as well to a division among classes as among individuals. Henry v. Thomas (1889) 118 Ind. 23, 20 N. E. 519, 521;West v. Rassman (1893) 135 Ind. 278, 34 N. E. 991, 994.

See, also, McClench v. Waldron (1910) 204 Mass. 554, 91 N. E. 126;Allen v. Boardman (1906) 193 Mass. 284, 79 N. E. 260, 118 Am. St. Rep. 497. “When technical words are used, they should have their legal effect, unless subsequent inconsistent words are used.” Laisure v. Richards (1913) 56 Ind. App. 301, 103 N. E. 679, 682. It is also stated as a rule of law of controlling effect in the construction of wills that, “If the beneficiaries are described by reference to a class which implies descent and distribution in accordance with the statute, a...