Weishaar v. Burton, 19360
| Decision Date | 15 January 1962 |
| Docket Number | No. 19360,No. 1,19360,1 |
| Citation | 132 Ind.App. 597,179 N.E.2d 211 |
| Parties | Frank WEISHAAR, Letha Weishaar Drobisch, Robert Miller, Helen Fieldhouse, Appellants. v. Nettie E. BURTON, George Williams, Clara Williams Cunningham, Margaret Williams Murphey, Delores White, Laferne McGee, Bessie Young, Ray V. Major, Ralph Major, Lyndall Griffin, Cornelia Ross, Pauline Hough, Sudie E. Herath, Rother J. Johnston, Betsy Baehman, Harold Williams, Jo Ann Williams, Gail Anderson, Martha Hayes, Gwendolyn Stewart, Gladys Hively, Vermabelle Haigh, George Miller, Harold Burton, Appellees |
| Court | Indiana Appellate Court |
Russell J. Wildman, Cole, Wildman & Cole, Peru, for appellants.
Barce & Barce, J. Edward Barce, John W. Barce, Kentland, Fraser & Isham, William S. Isham, James A. Gardner, Fowler, for appellees.
This action was commenced by appellees' complaint wherein they alleged that they were the owners of certain real estate in Newton County, Indiana, and prayed for partition and a decree of court determining the respective interests of the parties. Appellants filed an answer in compliance with Supreme Court Rule 1-3, admitting certain allegations and denying others. They also filed a cross-complaint in two paragraphs, the first alleging that they were the sole owners of the real estate and praying for a decree quieting their title, and the second alleging that they were the sole owners by reason of the last will and testament of Addison Williams and praying for a construction of that will.
Trial was had to the court. The only evidence presented consisted of an agreed statement and stipulation of facts. There was a finding in favor of appellees on their complaint and a finding against appellants on their cross-complaint. Judgment was entered accordingly, sale of the real estate was ordered, and a commissioner was appointed to make sale and to account to the court. Appellants filed a motion for new trial which was overruled. This appeal followed.
The grounds relied upon in the motion for new trial are that the findings and decision of the court were not sustained by sufficient evidence and were contrary to law. The sole assignment of error in this appeal is that the court erred in overruling the motion for new trial.
In brief, the agreed facts are as follows: Addison Williams died testate, a resident of Newton County, Indiana, on September 4, 1909. He was the father of six children, namely, Carpenter Williams, Thomas Williams, Susan Major, Martha Ralph, Leah Cleaver and Esther Staton. His will had been executed on February 17, 1894. At that time all of his children had been married and had children of their own. However, on that date his daughters, Leah Cleaver and Esther Staton, where both deceased. Leah left two children surviving her, Addison Cleaver and Nettie Weishaar; Esther left one daughter surviving her, Betsy Johnston.
These facts were taken into consideration by Addison Williams when he drew his will. The first five items therein pertain to arrangements for his funeral, the payment of debts and the disposition of certain personal property, household goods and the home farm. It is the sixth item which is of special interest in this cause, and it reads as follows:
'To my son, Carpenter Williams, I give and bequeath one-sixth of said real estate, he to have and to hold the same for and during his natural life and at his death the same to go to his children in fee simple, share and share alike.
'To my son, Thomas Williams, I give and bequeath one-sixth of said real estate he to have and to hold the same for and during his natural life and at his death the same to go to his children in fee simple share and share alike.
'To my daughter Martha Stackhouse I give and bequeath one-sixth of said real estate, she to have and to hold the same for and during her natural life and at her death the same to go to her children, share and share alike.
'To my daughter Susan Major I give and bequeath one-sixth of said real estate, she to have and to hold the same during her natural life and at her death the same to go to her children in fee simple, share and share alike.
'To my granddaughter Betsy Johnston, the only child of my deceased daughter Esther Staton, I give and bequeath one-sixth of said real estate, she to have and to hold the same during her natural life and at her death the same to go to her children in fee simple share and share alike.
'It being my intention that my said children and grandchildren as herein stated are to have the said real estate during their natural lives as herein set out, they to have the possession thereof and to receive and enjoy the benefits and profits thereof so long they shall live, but that shall in no manner sell, dispose of or encumber the same.
'In the event of any of the said children or grandchildren as herein set forth dying without lawful issue, then such portion of the real estate as herein bequeathed to them during life shall at their death pass to and vest in fee simple in the descendants of such of the legatees as herein named, as may be living at such time, to be equally divided among them per stirpes and not per capita.'
Following the death of Addison Williams, his surviving widow elected to take under the law rather than in accordance with the terms of his will. She commenced an action in the Newton Circuit Court in partition, duly causing all necessary parties, being the children and grandchildren, to be served with summons, including Nettie Weishaar and Addison Cleaver. The complaint alleged that Addison Cleaver owned a life estate in an undivided one-twelfth of the real estate and that the remainder in fee simple of such undivided one-twelfth was owned by his children. There was also an allegation that Nettie Weishaar owned an undivided one-twelfth of the real estate for life and that the remainder in fee simple was owned by her three children, share and share alike.
A judgment in partition was entered in that action wherein the real estate was divided and set off to each of the parties. In so far as Addison Cleaver and Nettie Weishaar are concerned, the decree in partition reads as follows:
'That the defendant Addison Cleaver take hold and occupy the real estate so set off to him during the remainder of his natural life, the remainder in fee simple thereof to be held and owned by his children.
'That the defendant Nettie Weishaar take hold and occupy the land so set off to her for and during her natural life, the remainder in fee thereof to be held and owned in common by her children, to-wit: the defendants, Gertie Weishaar, Frank Weishaar, and Letha Weishaar, and the other child or children that may be born to the said Nettie Weishaar, if any.'
Nettie Weishaar died April 16, 1951, leaving three children, two of whom are appellants in this cause, being Frank Weishaar and Letha Weishaar Drobisch. Nettie's third child is deceased. The other two appellants herein, Robert Miller and Helen Fieldhouse, are the children of that third child.
Addison Cleaver died March 4, 1954, leaving no surviving children. The tract of land which was set off to him for life in the partition suit is the real estate in controversy herein.
The problem which presents itself to us in this appeal concerns the interpretation and construction of Item Sixth of the Will of Addison Williams. Under its provisions, appellants claim that upon the death of Addison Cleaver without surviving children the real estate he held for life goes to the descendants of his mother, Leah Cleaver, who are the appellants herein, in fee simple, to the exclusion of the other descendants of Addison Williams.
Appellees contend that, to the contrary, the real estate goes to the living descendants of all the life tenants named in the will of Addison Williams per stirpes. This was the position which was taken by the trial court.
As has been said many times in the construction and interpretation of a will, the cardinal and paramount rule is to ascertain the intention of the testator and give it effect as long as it is not prohibited by law or violates public policy. 29 West's Indiana Law Encyclopedia, Wills, ch. 6, § 173, p. 321. This intention may be ascertained by the language or the words of the will itself and an examination of the entire will or from the four corners thereof. 29 West's Indiana Law Encyclopedia, Wills, ch. 6, § 174, p. 324.
Also, circumstances and conditions surrounding the testator at the time the will was executed may be considered if there is any ambiguity in the language or terms of the will. 29 West's Indiana Law Encyclopedia, Wills, ch. 6, § 175, p. 326.
Appellants argue that, pursuant to these general rules, it is...
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