Swain v. Bowers

• Decision Date: 15 November 1927
• Docket Number: 12,947
• Parties: SWAIN ET AL. v. BOWERS ET AL
• Court: Indiana Appellate Court

158 N.E. 598

91 Ind.App. 307

SWAIN ET AL. v. BOWERS ET AL

No. 12,947

Court of Appeals of Indiana

November 15, 1927

Rehearing denied January 10, 1928. Transfer denied April 26 1930.

From Grant Circuit Court; J. F. Charles, Judge.

Suit to have the will of B. Elizabeth Miller declared void, brought by Sarah Swain and others against Beatrice Bowers and others. From a judgment for the defendants, the plaintiffs appealed.

Affirmed.

Wilbur E. Branyan, Fred H. Bowers, Milo N. Feightner, Lee M. Bowers and John R. Browne, for appellants.

Condo & Batton, O. F. Rhodes and Rhodes & Rhodes, for appellees.

MCMAHAN J. Dausman, J., absent.

OPINION

MCMAHAN, J.

This is an action by Sarah Swain, Georgiana Fulton, Earl Bumgartner, Homer Bumgartner, Aubrey Fosnaugh, and June Fosnaugh to have the last will and testament of B. Elizabeth Miller declared void. The first four named plaintiffs are brothers and sisters of the testatrix, while the last two are the children of a deceased sister. The complaint alleges that the testatrix died the owner of personal property worth in excess of $ 100,000, and that, in the absence of a will, these plaintiffs, as heirs, would have inherited all of the property of which the testatrix died the owner. The court sustained a demurrer to the complaint, hence this appeal.

The will, in so far as the same is material, is as follows:

"Item 2. I devise and bequeath all of my estate, both real and personal of any and every kind, wheresoever located, unto the First National Bank of Peru, Indiana, in trust with instructions that it discharge the trust herein created as follows:

"First. That the First National Bank of Peru, Indiana, trustee herein, shall and is hereby authorized and empowered to convert all of my estate into money or approved and solvent stocks or bonds when and as it deems best.

"Second. Said trustee shall maintain the principal of my estate intact and shall keep the same invested in its name in approved and solvent securities, stocks and bonds.

"Third. That said trustee shall divide the principal of my estate, after paying all debts thereof, into two equal parts and shall stand possessed of each of said parts in trust as hereinafter provided.

"Fourth. It is my will that the cestui que trust of one of said equal parts shall be the grandchildren of my said deceased husband, Schuyler C. Miller, and their issue if any be dead, namely the children begotten by the two sons of my said deceased husband, C. Kenneth Miller and C. Merrill Miller and their issue if any be dead. Said grandchildren shall each have an equal interest in said fund and trust estate. It is my intention that this provision of my will shall be applicable to any and all children begotten by the said C. Kenneth Miller, and C. Merrill Miller at any time, either before or after my death.

"Fifth. It is my will that the cestui que trust of said other equal part shall be the children begotten by or born to my brothers and sisters and their issue if any be dead, the same being the children of Sarah Swain, Georgiana Fulton, May Fosnaugh, deceased, Earl Bumgartner and Omer Bumgartner and their issue if any be dead. Said children of my said brothers and sisters shall each have an equal interest in said fund and trust estate. It is my intention that this provision of my will shall be applicable to any and all children begotten by or born to any of my said brothers or sisters, either before or after my death.

"Item 3. It is my will and I hereby authorize and instruct that The First National Bank of Peru, Indiana, trustee herein, shall deal with all cestui que trust during their minority as is best for their interest, especially requesting that it encourage and assist all those who desire to pursue legitimate education, and I authorize it to pay to any of the cestui que trust during their minority such sums out of the earnings of the trust estate as their best interest may require. However, it shall keep an accurate and complete record of all sums paid to each cestui que trust and at the termination of the trust herein created, as hereinafter provided, all sums paid shall be equalized.

"Item 4. When and as each of the cestui que trust under the terms of this will, reach the majority or become the age of twenty-one (21) years, providing they are not under mental disability, I instruct that said trustee shall render an accounting to them and shall pay to each one upon said event, three-fourths (3/4) of the principal of said estate to which he is entitled as may be then determined, and upon the final determination by said trustee that no more children can be born to either the sons of my deceased husband or to any of my brothers or sisters, then and in that event this trust estate shall terminate and said trustee shall account to each cestue que trust for his entire interest in my estate, as he reaches the age of twenty-one (21) years, and is not under mental disability.

"Item 5. I authorize and instruct said trustee, when it deems it necessary to contribute of the income a reasonable amount for support of any of the cestui que trust, and to pay the same either to the parents if it is satisfied that the children will receive the benefits thereof, or may pay direct to the persons or institutions furnishing the necessary merchandise, schooling or other things of value.

"Item 6. In the event of the death of any of the cestui que trust herein without issue or their descendants, the interest or share of such decedent cestue que trust or their descendant shall go to and become a part of the one equal part in which such decedent cestui que trust was interested and the same shall be administered by the trustee herein under all the terms and conditions of this will for the benefit of the other and remaining cestui que trust or their descendants. It being my intention that in such event the first cousins or their descendants, of such deceased cestui que trust shall take under the same terms the share which he would have taken had he survived."

Item 7 requires the trustee to keep an accurate account, which shall be open to the interested parties or their parents. Item 8 gave the trustee power to appoint necessary agents, attorneys in fact, or trustees, in order to successfully manage the trust, and Item 9 appoints the First National Bank of Peru as executor.

It is to be noted that provision is made for two separate and distinct trusts, the cestui que trustent of one being the grandchildren of the deceased husband, while the cestui que trustent of the other are the children of the brothers and sisters of the testatrix.

Sections 12171 and 12172 Burns 1926 (§§ 6057, 6058 R. S. 1881), are as follows: (§ 12171) "No limitation or condition shall suspend the absolute ownership of personal property longer than till the termination of lives in being at the time of the execution of the instrument containing such limitation or condition, or, if in a will, of lives in being at the death of the testator." (§ 12172) "A provision for the accumulation of interest or income of money or other personal property by any conveyance or will shall be void, except as follows: First. If the accumulation be directed to commence from the date of the instrument or the death of the person executing the same, it may be for the benefit of minors then in being or in being at such death, and to terminate at the expiration of their minority. Second. If the accumulation be directed to commence at any period subsequent to the death of the person executing such instrument, it may be within the time allowed in the first section of this act for the suspension of ownership, and at some time during the minority of the persons for whose benefit it is intended, and must terminate at the expiration of their minority. But a provision for accumulation beyond minority of such persons shall be void only as respects the time beyond such minority."

Appellants contend that the will is void for the following reasons: (1) It suspends the absolute ownership of personal property longer than the termination of lives in being at the death of the testatrix; (2) it provides for the accumulation of interest, income of money and other personal property for a time longer than lives in being at the death of the testatrix; (3) it provides for the accumulation of interest, income of money and other personal property for minors in being at the death of the testatrix, said accumulations not to terminate with the minority of the minors; (4) it provides for the accumulation of interest, income of money and other personal property to begin after the death of the testatrix and payable to minors, such accumulations not to terminate with the minority of the minors or at any time during their minority; (5) it provides for the accumulation of interest, etc., to begin at the death of the testatrix, to be held in trust for minors living at the death of the testatrix, which trust does not terminate with the minority of such minors, nor with the end of lives in being at the death of the testatrix; and (6) the shares of the legatees cannot be ascertained from the provisions of the will.

In support of these contentions, appellants first call attention to the provisions in the fourth and fifth paragraphs of Item 2, which provide that the trusts shall apply to the children of the named persons begotten either before or after the death of the testatrix, and insist that these provisions are in direct conflict with § 12171, supra, in that the clause in the fourth paragraph which provides that one-half of the property shall be held by the trustee for the benefit of the children of Kenneth and Merrill Miller "and their issue if any be dead," and which is followed by the expressed intention of the testatrix that...