Sample v. Butler Univ.

Citation5 N.E.2d 888,211 Ind. 122
Decision Date01 February 1937
Docket NumberNo. 26785.,26785.
PartiesSAMPLE v. BUTLER UNIVERSITY et al.
CourtSupreme Court of Indiana
OPINION TEXT STARTS HERE

On motion of May Culver Sample to modify mandate, being in substance a petition for rehearing, and on petition of Butler University to modify mandate.

Petition of May Culver Sample denied, and petition of Butler University granted, and mandate modified.

For former opinion, see 4 N.E.(2d) 545.

Transferred from the Appellate Court under Burns' Ann.St.1926, § 1357.Appeal from Marion Circuit Court; Harry O. Chamberlain, judge.

Daily, Daily & Daily, of Indianapolis, for appellant.

Ernsley W. Johnson and Chester L. Zechile, both of Indianapolis, for appellees.

FANSLER, Judge.

Within the time for filing petitions for rehearing, which has now expired, the appellant has filed what is denominated a motion to modify the mandate in the opinion heretofore announced, but which is in substance a petition for a rehearing, since it seeks a change in the opinion with respect to the effect of the language in the will. It is contended that the contract and the wills must be construed as indicating an intention to affect all of the property of which the survivor should die seized, that is, that the survivor contracted that their two children should be the beneficiary of all of the property, real and personal, of which the survivor should die seized, regardless of whether it was property which had been held by them as tenants by the entireties or property which the survivor held individually. But the contract and the will relate only to the disposition of ‘our property owned by us jointly as husband and wife * * * in such a way that our children shall derive a certain benefit therefrom,’ and the devise and bequest refer only to ‘all the property in the State of Indiana, which may be owned by myself and my said wife, jointly, and which may come to me as the survivor of us, and which I may own at the time of my death.’ The construction contended for is strained and unreasonable. The petition is denied.

The appellee Butler University has filed a petition to modify the mandate in so far as it affects Albert Noble Whitsett, who was an appellee. Mr. Whitsett assigned no errors and presented no brief, and the direction for a judgment in his favor was improvidently entered, for the reason that his cross-complaint asking a judgment below had been dismissed, and he has no pleading in the record by which he prays judgment of any kind in his favor. It...

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3 cases
  • Olive v. Biggs
    • United States
    • North Carolina Supreme Court
    • April 15, 1970
    ...part of one's estate upon his right of inter vivos conveyance, see: Sample v. Butler University, 211 Ind. 122, 4 N.E.2d 545, 5 N.E.2d 888, 108 A.L.R. 857; 57 Am.Jur., Wills, § 710; Atkinson on Wills 2d ed., § We hold, therefore, that Dr. Olive is bound by the contract shown in the document ......
  • Flohr v. Walker
    • United States
    • Wyoming Supreme Court
    • April 5, 1974
    ...Daniels v. Aharonian, 63 R.I. 282, 7 A.2d 767, 770; and see Sample v. Butler University, 211 Ind. 122, 4 N.E.2d 545, 549, 5 N.E.2d 888, 108 A.L.R. 857; but plaintiff cannot dissipate the estate or alienate by inter vivos transfers or by will to defeat the provisions of paragraph five of the......
  • Mountz v. Brown
    • United States
    • Indiana Appellate Court
    • October 4, 1948
    ...v. Lovett, 1928, 87 Ind.App. 42, 155 N.E. 528,157 N.E. 104;Sample v. Butler University et al., 1936, 211 Ind. 122, 4 N.E.2d 545,5 N.E.2d 888, 108 A.L.R. 857; Henry's Probate Law and Practice, supra. Finding no error, the judgment of the DeKalb Circuit Court is ...

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