Sexton v. Cronkhite

• Court: Indiana Appellate Court
• Writing for the Court: McMAHAN
• Citation: Sexton v. Cronkhite, 74 Ind.App. 245, 127 N.E. 829 (Ind. App. 1920)
• Decision Date: 22 June 1920
• Docket Number: No. 10466.,10466.
• Parties: SEXTON v. CRONKHITE et al.

74 Ind.App. 245

127 N.E. 829

SEXTON

v.CRONKHITE et al.

No. 10466.

Appellate Court of Indiana, Division No. 2.

June 22, 1920.

Appeal from Circuit Court, Warren County; Burton B. Berry, Judge.

Action by George L. Cronkhite and others against John Sexton. Judgment for plaintiffs, and defendant appeals. Affirmed.

McCabe & Sons, of Williamsport, for appellant.

H. D. Billings, of Williamsport, for appellees.

McMAHAN, C. J.

Complaint by appellees, George L. Cronkhite, Bessie Cronkhite, and Ada Talbert, children of Winfield S. Cronkhite, to quiet title to certain real estate in Warren county, Indiana. Appellees claim to own the real estate in controversy under the will of Levi Cronkhite. Appellant filed an affirmative answer, alleging that Winfield S. Cronkhite became the owner of said real estate through the said will and, being indebted to appellant, mortgaged said land to appellant in 1905 to secure the payment of said debt, and asking for the foreclosure of said mortgage. Appellant's demurrer to the complaint was overruled and appellees' demurrer to the answer sustained. These rulings are assigned as error and require a construction of items 2 and 5 of the will of Levi Cronkhite. Said items 2 and 5 read as follows:

(2) “I will to my wife Mary Ann Cronkhite, all my estate, both real and personal, during her life to have and to hold the same for her own use and benefit.”

(5) “To my son, Winfield S. Cronkhite, I will [describing land in controversy]. My will is that he shall have the same for his use and benefit for the term of twenty years, then he, if living, may dispose of the same; if he should die before the twenty years, then I will that his lawful children inherit the same and if there be no children of his own living, then the said land goes to the heirs of Levi Cronkhite the maker of this will.”

It will be observed that the real estate mentioned in item 5 is included in item 2, which gives the widow a life estate in all of the testator's real estate.

Levi Cronkhite died in April, 1893, and his will was probated soon thereafter. The widow, Mary Ann Cronkhite, died in 1912, and Winfield S. Cronkhite died in 1917. In addition to the above and foregoing facts the appellant in his answer alleges that prior to the death of Levi Cronkhite he had placed Winfield Cronkhite in possession of the land so devised to him by said will, and that said Winfield Cronkhite had been in possession of said land for 3 years prior to the death of said testator, and that he remained in possession of said land, claiming to be the owner thereof in fee simple, subject only to the condition that he survive the testator 20 years; that he paid no rent to his mother, Mary Ann Cronkhite, and that she acquiesced in his claim, and that said Winfield and his mother both construed said will to mean that the estate given by it to said Winfield was subject to her life estate, and that the said Winfield occupied said land and had the use and benefit of the same for more than 20 years after the death of his father. A copy of said will and codicil thereto are made a part of the said complaint and answer.

The controversy turns on the construction of that part of said item 5 reading as follows:

“My will is that he shall have the same for his use and benefit for the term of twenty years, then he, if living, may dispose of the same. ***”

Appellant calls attention to items 7 and 8, which he claims throw light on the intention of the testator as expressed in item 5.

In item 7 he gave his daughter Mary a tract of land, and used the words:

“To have and to hold the same for her use for fifteen years, and at the expiration of fifteen years, she is to be the sole owner in fee simple with full power to sell and convey the same, and if she die without issue before the expiration of the fifteen years trust, then the said land reverts back to the heirs of the original donor.”

In item 8 he gave to his daughter Minnie a tract of land, and uses the following words:

“To be held by her in trust for fifteen years, then said land is hers in fee simple with full power to convey or dispose of, and in case the said Minnie dies before the trust expires, then, and in that case it goes to her children and her children only, and in case she has no children, then it reverts back to the heirs of the donor.”

Appellant argues that the testator, by the use of the word “trust” in items 7 and 8, indicated an intention to create a trust in his daughters Mary and Minnie; that the trust was to begin on the death of the testator, and that we should hold that it was also his intention to create a trust in the son Winfield which was to commence on the death of the testator and at the end of 20 years would become a fee-simple title absolute; that the fifth clause of the will, when construed in the light of the other provisions of the will, give to Winfield Cronkhite the estate in fee simple, subject only to the condition that he survive the testator 20 years, and that the words “subject to my wife's life estate” should be read into the fifth item of said will, making said clause read as...