Sample v. Butler University

• Decision Date: 16 November 1936
• Docket Number: 26785.
• Citation: 4 N.E.2d 545,211 Ind. 122
• Parties: SAMPLE v. BUTLER UNIVERSITY et al.
• Court: Indiana Supreme Court

4 N.E.2d 545

211 Ind. 122

SAMPLE v. BUTLER UNIVERSITY et al.

No. 26785.

Supreme Court of Indiana.

November 16, 1936

Appeal from Marion Circuit Court; Harry O. Chamberlain, judge.

Action by May Culver Sample against the Butler University and others. From an adverse judgment, plaintiff appeals.

Judgment reversed, with directions.

Superseding opinion of Appellate Court in 190 N.E. 622.

Thomas A. Daily, Wilson S. Daily, and John H. Daily, all of Indianapolis, for appellant.

Emsley W. Johnson and Chester L. Zechiel, both of Indianapolis, for appellees.

FANSLER, Judge.

Charles T. Whitsett and Lina B. Whitsett were married in 1896. Pursuant to the terms of an antenuptial contract, they each invested $10,000 in real estate, the title to which was taken by them as tenants by the entireties. From time to time they sold parcels of the real estate held as tenants by the entireties and reinvested in other property, title to which was taken in the same manner and thus the value of their holdings increased. Each had a child by a former marriage; appellant the daughter of Mrs Whitsett, and appellee Albert Noble Whitsett the son of Charles T Whitsett. On the 24th day of September, 1912, the husband and wife executed wills identical in all respects except as to their names. The body of the will of Charles T. Whitsett is as follows:

‘ I, Charles T. Whitsett, of Indianapolis, Indiana, do make and declare the following as my last will and testament.

‘ Item 1. It is my will that all my just debts be paid from any fund available for that purpose.

‘ Item 2. Whereas, it has been agreed between myself any my wife, Lina B. Whitsett, that we shall each make a separate will bearing the same date disposing of our porperty 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 niether 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, without 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.'

Lina B. Whitsett died on the 16th day of November, 1913. On September 25, 1915, Butler University executed and delivered to Charles T. Whitsett the following instrument:

‘ Acceptance of Trust.

‘ Whereas: Butler University is now fully advised of all 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, and said execution duly attested by said John B. Elam, and Cassius C. Shirley, all of Indianapolis, Indiana, by which said wills the Real Property of said testator and testatrix was disposed of after the demise of the survivor of them and Butler University named therein as final beneficiary on the condition as expressed in each of said wills, ‘ if Butler University shall accept the terms of this will.'

‘ 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 under and by virtue of said wills or either of them. But said Butler University hereby declines and disclaims any right, title or interest now, or at any further time, in any of the personal property owned at any time by either said testator or testatrix or jointly by both of them and whether covered by said wills or either of them or not.

‘ Butler University

‘ By Hilton U. Brown, President.'

Charles T. Whitsett died on August 21, 1928. At the time of the death of Lina B. Whitsett neither of their wills had been revoked or destroyed, and neither of them had made or executed any other will or codicil. On May 20, 1918, and August 5, 1918, Charles T. Whitsett conveyed to Butler University certain real estate owned and held by Lina B. Whitsett and himself as tenants by the entireties at the time of her death, and, in consideration therefor, Butler University entered into three contracts with Charles T. Whitsett described as ‘ Life Annuity Bonds.’ The first bond recites that it is issued in consideration of a gift of real estate in the principal sum of $3,500, which is accepted by the university, and, in consideration therefor, the university agrees to pay an annuity of $210 to Charles T. Whitsett during his lifetime. The second bond recites that Charles T. Whitsett has made a gift to Butler University in the principal sum of $10,000, $9,000 in real estate and $1,000 in government bonds, which has been accepted by the university; that, in consideration of the gift, the university promises and agrees to keep the improvements on the real estate transferred in repair, and to permit Charles T. Whitsett to reside in the property during his natural life, and the university agrees to pay, after the death of Charles T. Whitsett, an annuity to be divided between Albert N. Whitsett and Grace Mayhew; the amount to Albert N. Whitsett being $100 per year for his life, and the amount to Grace Mayhew being $500 per year for her life, with a provision that if Albert N. Whitsett survives Grace Mayhew he shall receive $25 per month during his life. The third bond recites that it represents a gift of property of the value of $25,000, which is accepted by the university, and, in consideration therefor, it is agreed that it will pay an annuity to Charles T. Whitsett amounting to $2,100 per year during the period of five years from August 1, 1919, if he shall live that long, and that if he should not survive that period it will pay to Albert N. Whitsett, from the date of the death of Charles T. Whitsett, an annuity of $1,200 per year for the remainder of the five-year period; that, should the annuitant survive the first five-year period, it will pay to him so long as he lives $1,500 per year, in monthly installments; and from and after his death, provided his death occurs more than five years later than August 1, 1919, it will pay to Albert N. Whitsett an annuity of $900 during his lifetime. All of the bonds provide that they shall not be transferred without the consent of the university. In addition to the transfers of property above referred to, Charles T. Whitsett transferred and conveyed to the university certain personal property after the death of Lina B. Whitsett, amounting in all to $13,720. $8,120 of this amount, all of which with the exception of $4,600 was in cash or government bonds, was given to the university without any consideration. It is recited in the special findings that an annuity agreement was entered into as a consideration for the payment of this money, but the agreement set out is merely an agreement to change the terms of a former annuity agreement which provided for the payment of $75 per month to Albert Noble Whitsett, and to substitute therefor the payment of $50 per month to Albert Noble Whitsett and $25 per month to Grace Mayhew. It does not purport to have been made as a consideration for the $8,100. At various times he delivered stock certificates and cash, amounting to $5,600, to the university, in consideration of which the university agreed to accept the stock and money as a gift, and to pay to Charles T. Whitsett during his natural life the dividends and proceeds of the stocks actually received, and after the death of Charles T. Whitsett to pay to Robert B. Whitsett, Jr., during his life, the dividends actually paid upon the stock. Upon the death of Charles T. Whitsett and Robert B. Whitsett, Jr., all payments...