Salvation Army, Inc. v. Hart

• Citation: 149 N.E.2d 557
• Decision Date: 10 April 1958
• Docket Number: No. 19107,19107
• Parties: SALVATION ARMY, Inc., Father Flanagan's Boys' Home, Berea College, Appellants, v. Grace B. HART, Personal Representative of the Estate of Charles L. Hart, Deceased, Grace B. Hart, Trustee-designate Under the Last Will and Testament of Charles L. Hart, Deceased, Grace B. Hart, Individually and as Widow of the Said Charles L. Hart, Deceased, Appellees.
• Court: Court of Appeals of Indiana

Page 557

149 N.E.2d 557

SALVATION ARMY, Inc., Father Flanagan's Boys' Home, Berea

College, Appellants, v. Grace B. HART, Personal Representative of the Estate of

Charles L. Hart, Deceased,

Grace B. Hart, Trustee-designate Under the Last Will and

Testament of Charles L. Hart, Deceased,

Grace B. Hart, Individually and as Widow of the Said Charles

L. Hart, Deceased, Appellees.

No. 19107.

Appellate Court of Indiana, In Banc.

April 10, 1958.

Dissenting Opinions, April 10, 15, 1958.

Rehearing Denied May 13, 1958.

Transfer Granted Dec. 9, 1958.

Charles H. Sparrenberger of Fine, Hatfield, Sparrenberger & Fine, Forrest M. Condit, Evansville, for appellants.

Clifton L. Markel, Wm. L. Mitchell, Evansville, for appellees.

ROYSE, Presiding Judge.

Appellees filed in the Warrick Circuit Court a Final (Partial) Report in the estate of Charles L. Hart, deceased. To this report appellants, as residuary legatees, filed their objections. They also filed a second paragraph as an action to construe the will of the deceased. Appellees' demurrer to appellants' petition for construction of the will was overruled. Appellees then filed a cross-complaint for declaratory judgment and a cross-petition. Appellants filed their answer to the cross-complaint and cross-petition.

There were two final judgments, the first, judgment in favor of appellees on appellants' petition for construction of the will; the second, judgment in favor of appellees on appellants' objections to the Final (Partial) Report.

We granted the parties' petition to file the two transcripts under one number and to file consolidated briefs.

In each case the cause was tried on a stipulation of facts. In the action for construction of the will and the cross-complaint for declaratory judgment and for instructions, the stipulation, omitting immaterial items of the will, was as follows:

'I. Charles L. Hart, a resident of the City of Boonville, Warrick County, Indiana, being of sound and disposing mind and memory, do hereby make, publish and declare this to be my last will and testament hereby revoking all former wills by me heretofore made.

'Item I:--* * *

'Item II:--I hereby direct that any and all inheritance, estate and succession taxes and duties levied or assessed against my estate or any of my beneficiaries, or beneficiaries of the trust hereinafter created shall be paid by my executor out of the general assets of my estate.

'Item III:--* * *

'Item IV:--* * *

'Item V:--If my wife, Grace Hart, shall be dead at the time of my death, then, in that event, I hereby give, devise and bequeath all the rest, residue and remainder, after only the payments provided for in Item I and Item II hereof, and the payment of the bequests provided for in Item III, and Item IV hereof, of all my property, of every kind and description, of which I may die seized or possessed, to the following organizations:

'An undivided 2/5 interest to the Salvation Army, Inc., an Indiana corporation organized under the laws of the State of Indiana;

'An undivided 3/10 interest to Flanagan's Boys' Home, a Nebraska corporation, organized under the laws of the State of Nebraska;

'An undivided 3/10 interest to Berea College, Berea, Kentucky; to be held absolutely and in fee simple forever, but charged, and charged only, with the lien and obligation of said organizations, to pay to my sister, Effic M. Baker, of Warrick County, Indiana, if she shall survive me, the sum of Five Hundred Dollars ($500.00) per month from the time and date of my death so long as she, my said sister, shall live and to pay to Laura Dugan, now of Boonville, Indiana, if she be living at the time of my death, the sum of Fifty Dollars ($50.00) per month from the time and date of my death so long as she, said Laura Dugan, shall live.

'Item VI:--If my wife, Grace Hart, shall survive me and be living at the time of my death, then, and in that event, I hereby give, devise and bequeath all the rest, residue and remainder, after only the payments provided for in Item III and Item IV herein, of all my property of every kind and description, of which I may die seized or possessed, to my wife, Grace Hart, and to her successor or successors, as trustee, and in trust, upon the terms and conditions hereinafter set out, to-wit:

'1. This trust shall be for the term of and shall continue for the lifetimes of my wife, Grace Hart, my sister, Effie M. Baker, and Laura Dugan, and the survivor of them.

'2. * * *

'3. * * *

'4. The trustee shall, from the time of my death, and thereafter, so long as my sister, Effie M. Baker shall live, pay to, or for, or for the benefit of, my said sister, Effie M. Baker, the sum of Five Hundred Dollars ($500.00) per month, the said payments, and the total thereof, to be paid out of and charged against the corpus of this trust estate, and the trustee shall, from the time of my death, and thereafter, so long as Laura Dugan, now of Boonville, Indiana, shall live, pay to or for the benefit of, the said Laura Dugan, the sum of Fifty Dollars ($50.00) per month, the said payments, and the total thereof, to be paid out of and charged against the corpus of this trust estate.

'5. * * *

'6. * * *

'7. All costs and expenses, of every kind and description, of the trust estate and the administration thereof, throughout the entire term of the trust, shall be borne by the corpus of the trust estate and charged against and paid out of the corpus, and not the income, of the trust estate, with the intention and to the end that the gross earnings, income and profit from the corpus shall be and remain also the net income, earnings, and profit, for the benefit of my said wife, Grace Hart, as beneficiary of the earnings, income and profit.

'8. * * *

'9. At the end of each year the trustee shall account for and pay to my wife, Grace Hart, any and all surplus of earnings for said year not previously paid to her during said year so long as she, said Grace Hart, shall live during the term of this trust, but if the said Grace Hart shall die before the end of this trust, then, and thereafter, any and all earnings of each year shall become a part of the corpus of said trust estate.

'10. Upon the death of the last survivor of the said Laura Dugan, my said sister, Effie M. Baker, and my wife, Grace Hart, the trustee shall pay, deliver and account for all remaining corpus and any accumulated income of said trust estate to the following organizations:

'An undivided 2/5 interest to the Salvation Army, Inc., an Indiana corporation organized under the laws of the State of Indiana;

'An undivided 3/10 interest to Father Flannagan's Boys' Home, a Nebraska corporation, organized under the laws of the State of Nebraska;

'An undivided 3/10 interest to Berea College, Berea, Kentucky;

to thereafter be theirs absolutely and in fee simple forever, free and discharged of any trust of any kind whatsoever.

'11. * * *

'12. * * *

'Item VII:--* * *

'Item VIII:--* * *

'In Witness Whereof, I have hereunder set my hand and seal this 11th day of September, 1951, A.D.

'Charles L. Hart (Seal).

* * *

* * *

'That the said Grace B. Hart is the widow of Charles L. Hart; that at the time of the death of the said Charles L. Hart, he was survived by neither parent nor descendant, and that the said Grace B. Hart, as such widow, is the sole and only heir at law and next of kin, for the purposes of taking any intestate property. That on March 22, 1954, the said Grace B. Hart was duly appointed the Personal Representative of said estate, gave bond and duly qualified. That the said Grace B. Hart, as the widow of said decedent, elected to take under the laws of the State of Indiana; and that her election is in the words and figures as follows, to-wit:

* * *

* * *

'It is further stipulated that the Inventory filed in said estate showed, exclusive of the personal property in controversy, a gross estate in excess of Three Hundred Thousand Dollars ($300,000.00).

'It is further stipulated that Effie M. Baker is Eighty-seven (87) years of age and is still living, and that Laura Dugan is Seventy-four (74) years of age and is still living.

'It is further stipulated by and between the said parties that should the Court determine said petition unfavorable to the Petitioners and in the event of an appeal to the Appellate Court of the State of Indiana and any petition subsequently filed to transfer to the Indiana Supreme Court may and shall be without bond on the part of either party, and that the parties will endeavor to expedite said appeal and that all matters which arise out of said estate and which have been determined by the said Warrick Circuit Court, and for which an appeal has been prayed, may be joined in one appeal with a combined transcript and that the issues presented may be presented to the Appellate Court in one brief.

'It is further stipulated by and between said parties that neither party will file in either the Appellate Court of the State of Indiana or the Indiana Supreme Court a motion to dismiss any appeal which may be taken, but that each of said parties will endeavor to have the Appellate Court determine the questions presented on their merits and so as to determine the law of the case.'

Judgment to the effect that the widow's election did not accelerate the remainder interest under the will and that she as sole and only heir at law and next of kin took the life estate in the two-thirds of the decedent's estate which she did not take under the law for the reason said life estate was intestate property.

The assignment of error is that the court erred in overruling appellants' motion for a new trial. The specifications of that motion are that the decision and finding is not sustained by sufficient evidence and is contrary to law.

Appellants contend 'where the life tenant elects to make under the law, the remainders are accelerated and come into being immediately upon the election being taken.' In support of this contention they cite § 6-301, Burns' 1953 Repl. (Acts ...