Sample v. Butler Univ, 14601.

• Decision Date: 07 June 1934
• Docket Number: No. 14601.,14601.
• Citation: 190 N.E. 622
• Parties: SAMPLE v. BUTLER UNIVERSITY et al.
• Court: Indiana Appellate Court

190 N.E. 622

SAMPLE

v.BUTLER UNIVERSITY et al.

No. 14601.

Appellate Court of Indiana, in Banc.

June 7, 1934.

Appeal from Marion Circuit Court; Harry O. Chamberlin, Judge.

Action by May Culver Sample against the Butler University and others. Judgment for defendants, and plaintiff appeals.

Affirmed.

Daily & Daily, of Indianapolis, for appellant.

Johnson & Zechiel, of Indianapolis, for appellees.

PER CURIAM.

The appellant brought an action in the trial court seeking to enforce an alleged trust contained and set forth in the separate wills of Charles T. Whitsett and Lina B. Whitsett, who were husband and wife, which said wills were made, as recited therein, in pursuance of an agreement between said testators. The wills are practically identical except as to names. We set out item 2 of the husband's will, as follows:

“Whereas, it has been agreed between myself and my wife Lina B. Whitsett, that we shall each make a separate will bearing the same date disposing of our property owned by us jointly as husband and wife and situated in the State of Indiana, in such a way that our children shall derive a certain benefit therefrom after the death of the survivor of us, and that after said wills are so made neither of us will revoke or destroy either of such wills or make any other will or codicil without the full consent and agreement of both.

“Now, therefore, in consideration of said agreement and in execution thereof, I, Charles T. Whitsett, devise and bequeath 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 to Butler University, a corporation formed under the laws of the State of Indiana, and now conducting a school for higher education at Irvington, Indiana, now within the corporate limits of the City of Indianapolis.

“Subject, however, to the following charge and trust. Within thirty days after said property passes to said University its value shall be fixed by three competent and disinterested appraisers selected by the parties interested or appointed by the Court having probate jurisdiction in Marion County, Indiana, and if either of the parties interested desires it there shall be a reappraisement of the same made in like manner at the expiration of each period of five years after the first appraisement. The said University shall then pay a sum equal to six per cent per annum upon the value so fixed, with out any deductions for any purpose, in monthly installments at the beginning of each month to my son Albert Noble Whitsett, and my wife's daughter Mrs. May C. Ricardi, in equal parts share and share alike so long as they both shall live, and after the death of either of them whether before or after this will becomes effective the whole sum to the survivor of them during the life of such survivor. Upon the death of the survivor of said children all of said property shall become the property of said University and free from any lien or charge created by this will, and if said University shall accept the terms of this will the payment of said sums to said children shall be a first lien and charge upon all of said property and all income therefrom which may be enforced by foreclosure or other appropriate proceeding. Under the supervision and direction of the court having probate jurisdiction in Marion County. Indiana, said University shall have the right to sell, exchange repair or remodel any of said property provided only that the lien and charge above mentioned is in no way impaired by such change.”

Both wills were executed on the 24th day of September, 1912. Lina B. Whitsett died on the 16th day of November, 1913, without either herself or her said husband, or both, having rescinded said contract or revoked or destroyed either of said wills, or executed any other will or codicil, and left said Charles T. Whitsett surviving.

The complaint was in one paragraph to which the defendants thereto filed separate and several demurrers which were overruled by the court, whereupon they each filed answers in general denial. The defendant Albert Noble Whitsett filed a cross-complaint to which various pleadings were addressed, which need not be detailed for the reason that before the finding was announced the said cross-complaint was dismissed by him.

At the request of the appellant the court made a special finding of facts and stated conclusions of law thereon. The conclusions of law were two in number; the first being that the law is with the appellees, and the second being that costs should be taxed against the appellant. Final judgment was rendered in accordance therewith.

The appellant in due time filed her motion for a new trial, which was overruled with an exception reserved, and this appeal prayed and perfected. The errors assigned and relied upon for reversal are: First, that the court erred in overruling the motion for a new trial; and, second, that the court erred in each of its conclusions of law. There are but two causes or grounds in the motion for a new trial, to wit, that the decision of the court is not sustained by sufficient evidence and is contrary to law. The appellant in her brief says that she does not complain of any of the separately numbered findings of facts except No. 23, which is as follows: “The Court further finds that the defendants, Butler University or Butler Foundation, accepted all of the conveyances, assignments and transfers of property in the findings heretofore set forth in the legal and due course of its business transactions with said Charles T. Whitsett and in good faith.” With reference to the above finding it is the appellant's contention that it is in conflict with other findings of fact and is not sustained by evidence and that the officers of Butler University and Butler Foundation had full knowledge of the contract between Charles T. Whitsett and Lina B. Whitsett containing the said trust and that the conveyances and transfers of property was a fraud upon the appellant, May Culver Sample (referred to in the wills as Mrs. May C. Ricardi).

The historical and controlling facts, as found by the court, are substantially as follows: That the appellant is the daughter of Lina B. Whitsett by a former marriage, and that Albert Noble Whitsett is the son of Charles T. Whitsett by a former marriage and is his sole and only heir at law; that in November, 1896, the said Lina B. Whitsett (formerly Culver) married the said Charles T. Whitsett, and that prior to said marriage she was the owner and in possession of a certain amount of real and personal property, and that they entered into an agreement before said marriage that “they would each invest ten thousand dollars of their property jointly as husband and wife”; that on or prior to the 24th day of September, 1912, it was mutually agreed by and between them, as shown by their separate wills, that each would make a will of that date, “so that the will of the survivor would dispose of their property owned and held by them jointly in the State of Indiana, at the time of said survivor's death, in such a way that their children should derive a certain benefit therefrom after the death of the survivor, and that after said wills had been made that neither of them would revoke or destroy either of such wills or make any other will or codicil without the full consent and agreement of both.”

The wills quoted from heretofore in this opinion were accordingly made and remained unchanged at the time of the death of the said Lina B. Whitsett mentioned above. Item 1 of each of said wills provided for the payment of just debts, and the last item, to wit, item 3, named the president of Butler University, at the time of the death of each testator, as executor. It was further found that at the time of the death of Lina B. Whitsett all of the property owned by her and Charles T. Whitsett, “real and personal except their wearing apparel, and certain minor articles as was owned by them jointly, upon the death of said Lina B. Whitsett, was taken by said Charles T. Whitsett subject to the charge and trust as specifically set forth in the 3rd rhetorical paragraph of item 2 of his will.” We now quote findings numbered 9, 10, and 11:

“9. That on said 24th, day of September 1912, at the time of the execution of the above and foregoing mutual reciprocal wills, and at all times thereafter, the defendant, Butler University, had knowledge that it was the beneficiary of said contract and wills and agreed to the trust and annuities named therein, in favor of the plaintiff, May Culver Sample, and the defendant and cross-complainant, Albert Noble Whitsett.”

“10. That all of the property, real and personal, owned and held jointly by said Lina B. Whitsett, and Charles T. Whitsett, upon the death of said Lina B. Whitsett on the 16th day of November, 1913, vested in and became the property of said Charles T. Whitsett as the survivor, subject to whatever trust and annuities were contained in said contract and wills.”

“11. That on the 25th day of September 1915, the defendant, Butler University, by its proper officers and Board of Directors, accepted the trust as provided for in said mutual and reciprocal wills of said Lina B. Whitsett and Charles T. Whitsett and ordered the President of the Board to present to said Charles T. Whitsett a formal acceptance of same.”

Butler University on the 25th day of September, 1915, accepted in writing said trust. The material part of said acceptance is as follows:

“Whereas: Butler University is now fully advised of the contents of each of the separate last Wills and Testaments of Charles T. Whitsett and Lina B. Whitsett his wife duly executed on the 24th day of September 1912, *** Now therefore, Butler University does hereby accept the said trust upon all the conditions set forth in said will as to all the real property left or that may be left by either said testator or testatrix...