Shriver v. Montgomery

• Decision Date: 15 January 1914
• Docket Number: 22,362
• Citation: 103 N.E. 945,181 Ind. 108
• Parties: Shriver et al. v. Montgomery, Administrator
• Court: Indiana Supreme Court

103 N.E. 945

181 Ind. 108

Shriver et al. v. Montgomery, Administrator

No. 22,362

Supreme Court of Indiana

January 15, 1914

From Fulton Circuit Court; Smith M. Stevens, Special Judge.

Action by Orba F. Montgomery, administrator with the will annexed of Jesse Shriver, deceased, against Elias Shriver and others. From a judgment construing the will, the defendants appeal.

Reversed.

I Conner, for appellants.

James H. Bibler and Holman, Stephenson & Bryant, for appellee.

OPINION

Myers, J.

This was an action by appellee as administrator de bonis non with the will annexed, of Jesse Shriver, deceased against appellants as children, grandchildren, and a guardian of grandchildren of said Shriver, to procure a construction of the will. The transcript was filed in the Appellate Court, December 22, 1910. On the passage of the act of March 10, 1913 (Acts 1913 p. 454), the Appellate Court on March 20, 1913, transferred the cause to this court, and the clerk on his own motion, after the decision involving the act of 1913 in Curless v. Watson (1913), 180 Ind. 86, 102 N.E. 497, retransferred the cause to the Appellate Court, and that court on October 29, 1913, properly transferred the cause to this court where the jurisdiction is, under § 1392 Burns 1908, Acts 1907 p. 237.

The error assigned and presented is in the ruling on the complaint, the pertinent allegations of which are, that on the 21st day of November, 1908, appellee filed his current report, setting forth the state of his account as administrator to that date, and asked therein a construction of the will of the deceased, Jesse Shriver, so as to determine the proper and legal distributees of the will, to enable him to make a final distribution of the balance of the personal assets of the estate, which report was filed in the estate, assuming that the jurisdiction to construe the will properly belonged to the probate side of the court; an order of the court on the probate side, was made, directing that service be had upon the children and grandchildren of the deceased, to the end that the will might be construed, to determine to whom the personal assets of the estate should be distributed. "That service was had upon some of the defendants hereinabove named, but that other of the defendants have not yet been served, and the matter coming up for hearing on the 22nd day of April, 1909, it was deemed best that the action should be in the character of an adversary proceeding, and service had upon all of the defendants hereinabove named, and on motion of the plaintiff in this proceeding, so much of said current report as called for the construction of the will was, by the order of the court, this day, transferred to the civil side of the court, and the matter docketed as a cause pending, with direction to amend the petition, and leave was granted by the court to amend the petition, and in accordance with said leave and order of the court, the plaintiff complaining of the defendants says that, the will of the deceased, Jesse Shriver, contained certain provisions with respect to the appointment of a trustee, and with respect to the extent and scope of the residuary clause of the will, as to whether it is sufficient to carry to the devisees, named in the will, that portion of the estate bequeathed to the widow of the deceased, which she renounced by taking under the law; that the children of the deceased are claiming and demanding of the plaintiff herein, that the residue of the personal estate of the deceased remaining after the payment of the debts be paid to them as the respective owners thereof, and that the grandchildren of the deceased, children of his said children, are claiming that under the provisions of said will, they are entitled to, and are the owners of the respective interests of the residue of said personal estate, and of the real estate described in the will as well, under and by virtue of the will. That the plaintiff, in this action, has been, and is now acting as trustee by virtue of his appointment by the court as provided in said will, the trustees therein named having declined to qualify and serve, with respect to the personal property; that he has not, however, taken possession and control of the real estate in the will, for the reason that he was in doubt with respect to his powers and authority under the will, and his appointment as trustee under the order of the court. That Franklin P. Shriver is claiming that he himself, is the owner of certain of the real estate set forth in the will as devised by the testator to him, and that the testator had not the power or authority to bequeath his said real estate so described therein, to the testator's grandchildren, nor any part thereof, but that he was and is the owner thereof. With respect to said real estate, the plaintiff herein avers the fact to be that in a proceeding had in this court for the purpose of establishing the will of the deceased, said Franklin P. Shriver was made a party defendant in said proceeding, and that settlement with respect to said real estate set forth in said will, and now claimed as being owned by said Franklin P. Shriver, was embraced in the adjustment, settlement and decree in said proceeding, and that said judgment and decree still stands as an adjudication of that question, as having never been set aside, nor appealed from, but is still in full force and effect." Here follow allegations showing that each of the sons mentioned in the several items of the will are living, and have children who are each minors, naming them, except in the case of James who is alleged to have died since the death of his father, and after the probate of the will, and naming his children, all minors; that Ruth Clayton is a daughter of the decedent, Jesse Shriver, and has no children; that Franklin P. Shriver is a son of the decedent, Jesse Shriver, and has no children; that the provisions of the will and said judgment and decree of the court, hereinbefore referred to, are as follows: "I, Jesse Shriver, of Fulton County, Indiana, do now make and establish this my last will and only will. 1st. I appoint W. J. Bemenderfer and his successor in trust, as my trustee, and I devise to him, to be held in trust for those hereinafter named, all my property, both real and personal, said trustee to pay all my debts and funeral expenses. 2nd. It is my will that Oliver Shriver continues to live upon and farm the land upon which he now lives, namely: (two described tracts) in all 99 acres, so long as he shall live; that the gross annual proceeds from said lands, to be turned over to my said trustee, from which annual proceeds said trustee shall pay the taxes, ditch assessments, and needed repairs upon said land, and the remainder of the annual proceeds be returned to my son Oliver. That the fee to said land be and remain in my said trustee or his successor until after the death of said Oliver Shriver, and until his youngest child shall become twenty-one years of age, when the fee to said land shall become the property of said children, they to share equally therein."

The third, fourth and fifth items make the same provisions as to specifically described tracts of land in favor of his sons Elias, James and David, as in case of Oliver. "6th. I give and bequeath to my wife Mary C. Shriver, my brick residence in Akron, Fulton County, Indiana, and the land adjacent thereto, (particularly described and other particularly described lands) so long as she shall live and remain my widow. And in addition thereto I devise to my said wife of the personal property as follows: $ 500 in money to be paid to her by my said trustee, and the interest on $ 2,000 to be held by said trustee, and the interest thereon to be paid to her annually or as collected. Also I give and bequeath to her all the household and kitchen furniture. 7th. I further direct that my said trustee or his successor have and hold for the benefit of my grandchildren, all property remaining, and not herein specifically bequeathed, in trust for said grandchildren, until the youngest of my said grandchildren arrives at the age of 21 years, at which time the same is to become the property of said grandchildren, they to share equally therein.

That as a part of the settlement herein, it is agreed and the court therefore finds, that a son of the decedent, Franklin P Shriver, ought to have, and by agreement of parties hereto is to have, the use and benefit of the following described land, ...