« AnteriorContinuar »
elect to take under the will, showing minutely the relative values of such estates. The prayer of the petition was that appellant be required to elect, in equity, whether she would take title to the lands described in the deed under that instrument, or take such lands, together with the other lands devised to her for life, under the will of George Weller, and that upon such election the court would direct them in the execution of their trust. To this petition were appended, as exhibits, a copy of the deed of January 4, 1898, a copy of the last will and testament of George Weller, and various other exhibits.
Appellant filed an answer to the petition, in which she recited the filing of the report of June 10, 1912, and her objections thereto, and the filing of the supplemental report or petition. The answer then avers that by seeking to require appellant to elect, and in the event of her declining to do so seeking sequestration of her estate in order to make compensation to the said children of John Weller, the trustees have taken a position in conflict with their duties as such trustees, and should therefore be removed and some proper person or persons be appointed in their stead, and that the said children of John Weller are necessary parties to the proceeding and should be brought into court. Exceptions were filed to the following among other portions of the answer, all of which were sustained and the portions excepted to were ordered expunged: That at the time of the death of George Weller appellant was fifteen years of age with an expectancy of thirty-six years, and the full value of her life estate in said 160 acres as fixed by the appraiser for said inheritance tax was the sum of $26,464, so that by reason of said conveyance, her father being but thirty-seven years of age, she receives less than one-half of the amount George Weller intended she should receive in said 160 acres; that appellant cannot be required to elect, because there is, in fact, a failure of devise to her, and under the facts she would lose $16,000 which the testator intended she should have; that the children of John Weller have but a contingent interest in the real estate devised by said will to appellant, and to defeat the vesting of the contingent remainder in the premises devised by the said sixth clause of the will, the appellant, as life tenant of the lands therein devised and as sole heir-at-law of George Weller, by her warranty deed of October 25, 1913, duly executed, acknowledged and delivered, conveyed the said premises in said will devised to her to Timothy T. Beach, which deed was filed for record October 27, 1913; that in and by said deed it was expressly recited that it was the meaning and intent of the grantor to convey to the grantee all the present estate which the grantor had therein, and also all reversion and right of reversion and right of reverter which was vested in the grantor as the sole heir-at-law of George Weller, so that the present estate and the reversion should merge, and thereby any future contingent interest and estate in the said premises, or any part thereof, created by or under the will of the said George Weller be destroyed; that the said Timothy T. Beach and wife thereafter, on October 27, 1913, conveyed to appellant, by proper deed of conveyance, all the said real estate theretofore conveyed to Beach on October 25, and that by reason of such conveyance the contingent remainder in said premises was destroyed and the said children of John Weller from thenceforward had, and now have, no interest of any kind or character in said premises, and no compensation can now, or at any time hereafter, be claimed by them, or any of them, or anyone through them, by reason of any pretended election. These averments were variously excepted to as being insufficient, impertinent, not responsive, and as stating conclusions of law and fact.
Appellant also filed what is referred to as a cross-bill but which is in the nature of a cross-petition. She therein alleged substantially the same matters as are contained in the answer, and the said children of John Weller were also made defendants. The cross-petition concludes with a prayer for the removal of the trustees, and that title may be quieted as against the claims of Mary Kiick, Herman Weller, Christian Weller and Charles Weller, the children of said John Weller. The trustees filed special and general demurrers to the cross-petition. The children of John Weller also filed a special demurrer to the cross-petition. The special demurrer of the trustees challenged the sufficiency of substantially the same allegations of the cross-petition as those contained in the answer and expunged therefrom on exceptions, as above stated. The court sustained the special demurrers and overruled the general demurrer of the trustees.
Upon the hearing a decree was entered, which, after reciting the action of the court with reference to the exceptions to the answer and the various demurrers, found that the evidence was not sufficient to require the removal of the trustees, held that the act of appellant in conveying all her interest in the lands devised to her by the will of George Weller to Timothy T. Beach duly evidenced her intention to elect to take the estate devised to her for life by said will, overruled the objections to the report of the trustees and approved the said report. The decree further fixed the compensation of the trustees and allowed them an attorney's fee.
While the action of the court in allowing fees and compensation is assigned as error, no reference is made to it in the brief or argument of appellant and we have deemed those points as waived.
The contentions of appellant are that the court erred (1) in holding that she had elected between the deed and the will of George Weller; (2) in approving the report of the trustees; and (3) in refusing to remove the testamentary trustees.
Counsel on each side have devoted practically the whole of their argument to the question whether the reversion in
the lands devised in said sixth clause of the will descended to appellant, as the sole heir-at-law of the testator, pending the happening of the contingencies or passed to the children of John Weller under the residuary clause, and whether the deed from appellant to Timothy T. Beach therefore operated to prematurely destroy the contingent remainders provided for by the will of George Weller. This matter was attempted to be injected into the proceedings by the answer and cross-petition of appellant, but no decision was had in the trial court on this question, as the part of the answer relating to this matter was expunged upon exceptions and a special demurrer to the cross-petition challenging its sufficiency in this particular was sustained. There was no finding or order in the decree in reference to the attempted destruction of the contingent remainders and that question was not adjudicated. The action of the court in sustaining the exceptions to the answer and the special demurrers to the cross-petition was proper, as the portions of the answer and cross-petition excepted to and demurred to were impertinent and not germane to the matters involved. Whether appellant had succeeded in prematurely destroying the contingent remainders created by the will of her grandfather had no bearing whatever on the matters at issue, and however desirable it might be to the parties to secure an adjudication of this question, the court properly excluded it from consideration. This litigation arose upon the submission of the first current report of the trustees for approval. The objections of appellant indicated that she was claiming both under the deed of January 4, 1898, and under the will. The only purpose the trustees could have had in asking that she be required to elect under those circumstances was for their future guidance and to govern them in their dealings with the trust estate. While it became important in the administration of the trust to know whether appellant had elected or would elect to take under the will of her grandfather, it was immaterial, so far as the administration of the trust was concerned, what effect such election had or would have upon the contingent remainders, or whether the contingent remainders created by the will had been destroyed and the interest of appellant increased from that of a life estate to an estate in fee.
Appellant contends that a court of equity has no right or power to require her to elect as between the deed and the will because there is neither a plurality of gifts nor a disappointed donee whose loss can be compensated out of a gift to appellant. The necessity had clearly arisen here for the making of an election in order that the trustees might properly administer the trust. By the provisions of the will they were required to pay over to appellant, annually, the net income or proceeds from the trust property after she became eighteen years of age. When appellant had arrived at that age the trustees presented their report to the court showing a considerable sum in their hands for payment to her under the provisions of the will. By her objections to this report it appeared that she was claiming both under the will and under the deed. It became a matter of the utmost importance to the trustees to know whether she would elect to take under the will. Upon the result of such an election depended whether they should pay the balance in their hands as trustees to appellant, and also whether, in fact, the trust itself had terminated. There can be no doubt of the power of a court of equity, under such circumstances, to require the devisee to elect. As to whether the act of appellant in making the conveyance to Timothy T. Beach and of accepting a re-conveyance from him of all the lands devised to her by the will of her grandfather constituted an election to take under the will there can be no question. Where a party has notice that he is bound to elect to take under or against a will and deals with the property given him by the will as his own, it is clearly an act of election to take the property under the will. The court did not err in holding that appellant had