Lewis v. Atkins

105 N.E.2d 183, 122 Ind. App. 618, 1952 Ind. App. LEXIS 163

• Court: Indiana Court of Appeals
• Decided: April 21, 1952
• Docket: 18,265
• Status: Published

Opinions

Crumpacker, J.

This appeal is concerned wholly with the legal construction of Item I of the second codicil to the will of the late Sallie E. Coleman, deceased, which the court below concluded vests no legal rights in the appellants and so adjudged. The item in controversy reads as follows:

“I give, devise and bequeath to the Mutual Service Foundation of Indianapolis, a charitable Association for the benefit of needy women in Marion County and in which I have long been interested, my home and residence located at 1006 N. Meridian Street in Indianapolis, Marion County, Indiana, together with all curtains, drapes and window shades, the large mirror in the entrance hall and the large mirror in the dining room; the billiard table, chairs, and large desk in the billiard room; the books in the library; the large red sofa in the back parlor and the stove and icebox in the kitchen provided, however, that said Mutual Service Foundation must accept or reject this said devise and bequest within a period of six months from the date of my death. In the event that said devise and bequest is rejected by said Mutual Service Foundation, or is not accepted by it within the period of six months following my death, said real and personal property shall revert to my estate and become a part of the residue thereof. In the event that said devise and bequest is accepted by Mutual Service Foundation, the property shall be known as the ‘Sallie E. Coleman Memorial Home’ and shall be used solely for the charitable purposes of the Mutual Service Foundation and shall not be sold or conveyed by said Mutual Service Foundation. In the event that the Mutual Service Foundation shall cease to exist or shall cease to use said premises as a charitable organization or shall no longer desire to so use said real and personal property, the same shall revert to my heirs at law.

“Also it is my wish that Henry Lewis and his wife, Gertrude Lewis, be permitted to live in their quarters over the garage on said premises, as long as they desire so to do, rent free; also that the aged colored couple, Mr. and Mrs. Archie Lewis be permitted to live in the quarters at the rear of my home as long as they may wish to do so, rent free.”

As of some assistance to the court in determining the questions presented, the parties stipulated that the following extrinsic facts might be considered. For approximately 41 years prior to the death of William H. Coleman, husband of executrix, the appellant, Henry Lewis, had been employed by the decedent as chauffeur, yard and house man. After the death of William H. Coleman, he was employed by the testatrix in the same capacity for nine months and up to the time' of her death. During said employment Henry Lewis was paid a weekly salary comparable to the value of his services and he and his wife, Gertrude Lewis, were permitted to occupy the living quarters on the second floor of the garage in the rear of the Coleman residence, rent free. By the will of William H. Coleman the Lewises were given $5,000 cash and real estate generally known as 3513-15 Graceland Avenue, Indianapolis, Indiana, upon which a double house is located. By the Sallie E. Coleman will Henry Lewis was given $10,000 in cash and other personal property and his wife Gertrude received the sum of $1,000 in cash. The devise to the Mutual Service Foundation, provided for by Item I of the second codicil above quoted, was refused by said devisee and the property in controversy passed under the residuary clause of the will to the executors, to be handled as therein directed until the estate was closed and then to trustees in trust for specific purposes and persons. By order of the court the executors and trustees sold the property to the appellee Bapps Corporation which refuses to accept title because of the appellants’ claim here asserted. The district in which the Coleman residence is located is now devoted to business almost exclusively.

It has been suggested that the devise to the Mutual Service Foundation of “my home and residence located at 1006 N. Meridian Street, Indianapolis, Marion County, Indiana,” did not include the real estate upon which the garage is located. We do not believe, however, that such a construction of the will is tenable. According to the great weight of authority the devise of a “home” includes not only the testator’s dwelling house but the entire parcel of real estate constituting the residence estate. City of Richmond v. The State (1854), 5 Ind. 334. See also Note, 12 A. L. R. 1179. Therefore we conclude that, by Item I of the second codicil of her will, Sallie E. Coleman made a general devise of the entire lot, upon which her home and the garage in controversy stand, to the Mutual Service Foundation and, in the event it rejected the gift, then to the beneficiaries named in the residuary clause of her will. To that general devise the testatrix added words of a precatory character concerning the appellants’ use of “their quarters over the garage on said premises,” and we are called upon to determine whether such precatory language was intended to be mandatory or whether it was the purpose of the testatrix to give the taker of the fee full discretion in the matter of effectuating her “wish.”

The effect of the use of the precatory words in wills is the subject of numerous decisions by the courts of nearly all the states of the union and out of them there seems to have emerged considerable confusion but no general principle or rule applicable in all instances further than the proposition, from which there can be little dissent, that such words must be given the effect the testator intended them to have. In determining the question of the testator’s intention, the generally accepted rules of construction must apply and it will be presumed that he used precatory words in their ordinary and usual sense unless there is something to show that he intended that they be given a different meaning. Mitchell v. Mitchell (1895), 143 Ind. 113, 42 N. E. 465.

Conceding this the appellants nevertheless insist that the controversial provision of Sallie E. Coleman’s will, when examined in connection with other parts of the will and codicils and in the light of the relationship of the parties to each other and the moral obligation to care for the appellants which the testatrix naturally recognized, conclusively evidences her intention to vest a life estate in the “quarters over the garage” in the appellants. With this we cannot agree. An examination of the extrinsic evidence, all of which appears by way of stipulation, indicates nothing more than had the testatrix vested such life estate in the appellant in apt and specific terms, the devise would have been a natural and understandable one in view of the appellants’ just deserts but we find nothing in said evidence that compels us to conclude that she intended to do so. As for the will itself, the language she employed contains none of the words or terms usually used in creating life estates. The words “life” or “life estate” do not appear and certainly permission to occupy the premises “rent free” is not compatible with the rights of a life tenant who owes rent to no one and whose occupancy is not permissive. The natural and ordinary method of effectuating the intent for which the appellants contend would have been the short and unmistakable procedure of giving the appellants a life estate with the fee over to the Foundation. Instead of doing so she made a general devise of the whole property to the Foundation to which she coupled words that, in their ordinary meaning, expressed a wish that the Foundation permit the appellants to occupy a part of the premises so devised as long as they desire with rent forgiven. It is our opinion that if the appellants have any rights in the disputed property such rights must spring from the doctrine of precatory trusts or not at all.

In Vol. 1, Bogert on Trusts and Trustees, 1951 Ed., §48, p. 342, we find this text:

“The word ‘request,’ ‘desire,’ and the like, do not naturally import a legal obligation. But the early view in England was that such words, when used in a will, were to be given an unnatural meaning, and were to be held to be courteous and softened means of creating duties enforceable by the courts. According to that opinion words of request prima facie created a trust. But since the beginning of the nineteenth century the English courts have changed their stand upon this question, and now hold that the natural significance of precatory words is not a trust, but that such an obligation may be shown by other portions of the instrument or by extrinsic circumstances. The American courts have adopted this natural construction of precatory expressions.”

Viewing the present case in the light of this statement of the law we must conclude that the owners of the fee to the garage property hold the same without trust obligations to the appellants unless such obligations are shown by other portions of the will or by extrinsic circumstances.

Where the maker of a will repeatedly uses concise, legal and technical terms to express his intention to vest, in persons named, an estate or interest in property, a change from such phraseology to precatory expressions in connection with the disposition of other property indicates rather clearly that he did not intend such precatory words to create enforcible obligations as otherwise he would not have abandoned language with which he was familiar and which was unmistakably suited for the purpose. As bearing on this rule of construction see 2 Page on Wills, §933, p. 880; The State Bank v. Ewing (1861), 17 Ind. 68; 1 Bogert, Trusts and Trustees, §352. Page, in his work on wills above cited, says “if different words are employed with reference to a given subject matter, it will be assumed that testator intended a different meaning when he employed such different expressions.” So in this case, in disposing of the fee to the garage property the testatrix used the words “I give, devise and bequeath.” In connection with the same subject matter she said, “Also it is my wish that Henry Lewis, etc.” Therefore we must assume that she did not intend the word “wish” to mean “give, devise and bequeath.”

Bogert, in his work on trusts, supra,, says:

“That the testator clearly created a trust in another part of the instrument, using appropriate words of trust, has been held to show that precatory words were not intended to create a trust. And so, also, that the testator was a lawyer, and hence would presumably understand how to create a trust clearly, tends to prove that a use of precatory words was not intended to give rise to a trust.”

An examination of the present will and its codicil indicates that it was prepared by a skilled lawyer and in Items IX, X and XI thereof the testatrix clearly and precisely created trusts for the purpose therein expressed. Therefore it seems likely that had she intended to burden the garage property with a trust for the appellants’ benefit she would not have done so by the use of precatory words. On the other hand where she sought to vest discretion in those to whom she directed her words she did so clearly and unmistakably. For example in Item VI she made specific bequests to the members of her household staff, including the appellants, and in doing so she used the legal term “give and bequeath.” She then authorized her executors “to keep such of the above help in my home as they deem necessary, . . . and pay them such salary as may be suitable to their respective duties,” in which event they were to be permitted to “live there rent free.” Clearly this provision of the will authorizes the executors to dispense with the services of the appellants if and when they saw fit and repossess the quarters they live in and is entirely repugnant to the codicil under consideration if construed as sought by the appellants. In fifteen instances, concerning more than one hundred beneficiaries, the testatrix vested interests in property, real and personal, through use of legal words and phrases such as “devise,” “bequeath,” “devise and bequeath” and “give, devise and-bequeath” and in no instance, where she clearly intended to create enforcible interests, did she use precatory words. The whole will indicates that the testatrix and her draftsman knew how to create trusts and vest estates in property in clear and accurate terms and did so where such was their intention. It is clear that they knew the effect of precatory words and how to employ them when it was intended to vest discretionary powers in those to whom such words were directed. We cannot believe that the controversial words here involved ought to or can be construed as mandatory. For a discussion of the law of precatory trusts as it pertains in Indiana see Mitchell v. Mitchell, supra; Lumpkin v. Rodgers (1900), 155 Ind. 285, 58 N. E. 72; Snodgrass v. Brandenburg (1905), 164 Ind. 59, 71 N. E. 137, 72 N. E. 1030.

Granting that the extrinsic evidence shows that the appellants spent many years of faithful service in gainful employment as household servants of the testatrix and her late husband, William H. Coleman, both of whom held them in great affection and high esteem, we can not ignore the fact that they are the beneficiaries of Coleman gifts to the extent of $16,000 in cash, a duplex residence at 3513-15 Graceland Avenue in the city of Indianapolis and other personal property. Consequently we find no great moral equation in the problem of determining the testatrix’ intention which prompts the conclusion that she meant to make precatory words mandatory. Nor does the situation warrant us in relaxing the ordinary and generally accepted rules for the construction of wills of doubtful' meaning if, indeed, we had authority to do so.

Another feature of the case, it seems to us, requires comment. When the Coleman house was built it stood in a desirable residential district in the city of Indianapolis. As the city grew business began to encroach upon the neighborhood and when Sallie E. Coleman made her will her residential property had become surrounded by commercial interests and had little value for anything else. As long as the property was used by Mutual Service Foundation as a home for needy women, the occupancy of the quarters over the garage by the appellants would interfere little, if any, with the primary purpose to which the testatrix hoped it would be devoted. It is reasonable to assume that she knew that if the gift was rejected by the Foundation and the property thereby reverted to the beneficiaries of her residuary estate it would have little value for anything but business and, burdened with a life estate or-a trust for the benefit of the appellants, its value for that purpose would be largely destroyed. The appellants were not the sole objects of the testatrix’ bounty and we cannot believe that she was determined to provide for them to the point of impairing the value of property devised to others whom she also considered worthy of her largesse.

Judgment affirmed.

Achor, J., concurs with opinion. Royse, J., dissents with opinion.