Semmes v. Gary Nat. Bank
| Decision Date | 28 September 1970 |
| Docket Number | No. 970S224,970S224 |
| Parties | Granville Martin SEMMES, Appellant, v. GARY NATIONAL BANK, as Executor of the Estate of Gertrude Semmes, Deceased et al., Appellees. |
| Court | Indiana Supreme Court |
Spangler, Jennings, Spangler & Dougherty, John P. McQuillan, Gary, for appellant.
Albert H. Gavit and Albert H. Gavit, Jr., Call, Call, Borns & Theodoros, William Theodoros, Gary, for appellees.
This case comes to us on petition to transfer from the Appellate Court under Acts 1901, ch. 247, § 10, p. 565; 1933, ch. 151, § 1, p. 800, being Burns Ann.Stat. § 4--215 (1968 Repl.). See Semmes v. Gary National Bank (1968), Ind., 242 N.E.2d 517, for the opinion of the Appellate Court.
It appears from the record that on or about the 21st day of May, 1966, one Gertrude Semmes died a resident of the City of Gary, Lake County, Indiana, leaving a will. Said will was admitted to probate and record in Lake Superior Court on May 24, 1966. Thereafter, Gary National Bank was appointed and qualified as the Executor of the Estate of Gertrude Semmes, Deceased.
On July 11, 1966, the Gary National Bank, as Executor, filed its Complaint to Construe Will, which reads in pertinent part as follows:
'1
Plaintiff is the duly appointed and acting executor in this court of the Estate of Gertrude Semmes. She died testate on or about May 21, 1966, in Gary, Indiana, and was and had been a resident of said city for over twenty (20) years. A copy of her last will and testatement as admitted to probate in Estate No. G66--171 in this court on May 24, 1966, is made a part hereof and is attached hereto as Exhibit 1.
Neither at the time of her death nor for more than ten years prior thereto did she own any shares of stock in Calumet Securities Corporation of Gary, Indiana.
She died a widow. She had never had a child or children. She was survived by neither parents nor any brother or sister. The sister, Madeleine Walton, mentioned in said will pre-deceased the herein testatrix. That sister died a widow and is survived by two daughters, the defendants, Madeline Walton Anschutz and Sabina Walton Martin, and had no other children.
The relationship of the defendants, except defendant, Granville Martin Semmes, to the testatrix is that of nieces and nephews (or children of deceased nieces and nephews as is stated on Exhibit 2 that is attached hereto and made a part hereof).
The relationship of defendant, Granville Martin Semmes, to the testatrix and to this estate is not one of consanguinity. He was the nephew of the deceased husband of testatrix.
In the opinion of the executor, the proper construction of said will is that the surviving nieces and nephews of the testatrix share equally and ratably in the herein estate and with the heirs of any deceased niece or nephew taking the share of their deceased parent per stirpes.
Defendants, Madeline Walton Anschutz and Sabina Walton Martin, as the daughters of Madeleine Walton, deceased, may contend that the bequest to her did not lapse on her death and that they therefore are sole beneficiaries of this estate.
Defendant, Granville Martin Semmes, has advised the Executor that he will claim to participate in the estate.
The other defendants may contend that the testatrix died intestate as to her property.
All parties are joined herein who may claim any interest in said estate. All are non-residents of Indiana. It is believed that the following defendants are minors, to-wit:
Herbert Paul Orrick
WHEREFORE, plaintiff prays that the court construe said will, and determine heirship, and for all other proper relief in the premises.
EXHIBIT 1.
I, GERTRUDE SEMMES of Gary, Indiana, being of sound mind and disposing memory do make, ordain, publish and declare this instrument as my last will and testament hereby expressly revoking any and all former wills or codicils by me at any time made.
ITEM 1.
I appoint Gary National Bank of Gary, Indiana as executor of my will and testament.
ITEM 2.
I direct the payment of my debts and of the expenses of my last illness and burial.
ITEM 3.
I bequeath to Granville Martin Semmes of Memphis, Tennessee (a nephew of my deceased husband) any and all shares of stock in Calumet Securities Corporation of Gary, Indiana that I own on my death.
ITEM 4.
All the rest, residue and remainder of my estate wherever situate and of whatever kind or character, I devise and bequeath absolutely and forever and in fee simple to my sister, Mrs. Madeleine Walton of Oklahoma City, Oklahoma and any thereof that she may elect not to take is similarly bequeathed and devised to the said Granville Martin Semmes.
ITEM 5.
IN WITNESS WHEREOF I have executed this instrument as my last will and testament at Gary, Indiana, this 4 day of October, 1943.'
On September 12, 1966, the appellant filed his answer to said complaint and a Counter Petition to Construe Will, the latter reading in pertinent part as follows:
'That Gertrude Semmes was a resident of the City of Gary, County of Lake, State of Indiana at the time of her death and had been a resident of said city for over twenty (20) years. That said Gertrude Semmes died testate on or about the 21st day of May, 1966, in Gary, Indiana, and a copy of her Last Will and Testament is attached hereto and made a part hereof and marked Exhibit A. That said Last Will and Testament of Gertrude Semmes was admitted to Probate in the Lake Superior Court, Room No. Four sitting at Gary, Indiana in Estate No. G 66--171, on the 24th day of May, 1966.
That the counter-petitioner, Granville Martin Semmes, is one of the named beneficiaries of the Last Will and Testament attached hereto as Exhibit A of Gertrude Semmes.
That on the 11th day of July, 1966, an action was filed in the Lake Superior Court under cause No. 466--1634 wherein the Gary National Bank, as executor of the Estate of Gertrude Semmes, deceased, appears as the nominal plaintiff; that the Last Will and Testament of Gertrude Semmes was attached to the Complaint in said action, and incorporated therein; that in Rhetorical paragraph 4 of this action by the executor, the executor tells the Court that the Will should be construed so that 'the surviving nieces and nephews of the testatrix share equally and ratably in the herein estate and with the heirs of any deceased niece or nephew taking the share of their deceased parent per stirpes.' That this Counter-complaint and counter-petitioner, Granville Martin Semmes, is informed and does believe that the defendants named in the executor's aforementioned complaint and the defendants herein mentioned in counter-petitioner's counter-complaint may contend that the testatrix, Gertrude Semmes, died intestate.
(This paragraph contains a listing of the names and addresses of those persons interested in the proceedings and the construction of the will and is here omitted in the interest of brevity)
That item number 4 of the Last Will and Testament of Gertrude Semmes provides as follows:
All the rest, residue and remainder of my estate wherever situate and of whatever kind or character, I devise and bequeath absolutely and forever and in fee simple to my sister, Mrs. Madeleine Walton of Oklahoma City, Oklahoma and any thereof that she may elect not to take is similarly be-bequeathed and devised to the said Granville Martin Semmes.
That a plain reading of the fourth item of the Last Will and Testament together with the entire Last Will and Testatement of Gertrude Semmes, admitted to Probate under Estate No. G 66--171, in this Court, provides that the plaintiff, Granville Martin Semmes, shall be the final residuary legatee and beneficiary of said Last Will and Testatement.
That Madeline Walton, mentioned in item four of the Last Will and Testament of Gertrude Semmes, pre-deceased the testatrix, and that thereby any bequest of said Madeline Walton did lapse upon her death.
That the true intent and effect of the Last Will and Testament of Gertrude Semmes, deceased, was vest title to all of her real and personal property, wherever situate and of whatever kind or character, absolutely and in fee simple in the plaintiff, Granville Martin Semmes, subject only to the payment of the just debts and expenses of last illness and burial of the testatrix, Gertrude Semmes.
That the true intent and effect of the Last Will and Testament of Gertrude Semmes, deceased, in the event of a lapse of any request to Madeline Walton, was not an intent to die intestate, but was an intent to give all real and personal property, wherever situate and of whatever kind or character, absolutely and in fee simple to the plaintiff, Granville Martin Semmes; and to give all such property to Granville Martin Semmes which was not taken by Madeline Walton.
WHEREFORE, the counter-petitioner, Granville Martin Semmes, prays that the Court will order and decree as follows:
A. That the Court will order and decree that the legal effect of the Last Will and Testatement of Gertrude Semmes, deceased, was to vest title to all her real and personal property, absolutely and in fee simple, in the counter-petitioner, Granville Martin Semmes.
B. That the Court will order and decree that none of the named defendants, nor any other person or corporation, has any interest, by way of remainder, reversion, or otherwise, in any of the real or prsonal property of the deceased, Gertrude Semmes.
C. That the counter-petitioner, Granville Martin Semmes, may have such other and further relief in the premises as equity may require and as to the court shall seem proper.'
(Exhibit A, attached to said counter-petition and made a part thereof, is the same as Appellee's Exhibit #1 heretofore set out and is, therefore, omitted).
Also, on September 12, 1966, appellant moved for a change of venue from the county, and on October 17, 1966, the parties hereto, by their respective counsel, pursuant to stipulation and agreement, caused the venue of ...
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