Messner v. Demotte

ON PETITION FOR REHEARING In their petition for rehearing the appellants insist the DeMotte petition involved only the question of the distribution of the Lewis share, and that the parties were not therein challenged to a construction of the will.

The DeMotte petition was broader than that. It alleged that certain children who were born to Isaac N. Julian, one of the primary beneficiaries, which children were living at the time of Smith's death, had later died leaving surviving their brother Elbert Julian, their mother Daisy D. Julian, and their father Isaac N. Julian, and the petition further alleges that Elbert Julian and Daisy D. Julian were claiming an interest in the trust fund. They could have no interest except by inheritance from the deceased child.

The petition further alleged that John Julian, one of the primary beneficiaries, was the father of certain living children, and also the father of certain children who had died after Smith died, and it further alleged that John Julian and Fanny Julian, his wife, were contending and claiming that upon the death of three of their children who had died, a part of the share which such children held in the trust fund vested in the said John and Fanny Julian as the surviving parents of said deceased children, and it alleged that the said John and Fanny Julian were made parties to show cause, if any, why Clause 43 of the will should not be construed as therein prayed.

As stated in our original opinion, the trustee alleged what he believed the proper construction of the clause to be; alleged that all defendants were made parties to show cause why the clause should not be construed as therein prayed; and the last sentence of the prayer in the DeMotte petition reads as follows:

". . . Your petitioner has made party defendants to this petition each of the living beneficiaries of said Will and also all of the children and heirs of the said Mary J. Lewis, and asks that they each be notified of the filing and pendency of this petition and be required to appear and show cause why the relief herein prayed should not be granted."

It thus appears the court was not called upon to determine merely the ultimate beneficiaries of that portion of the trust res from which Mary J. Lewis received the income during her 5. lifetime, for it further appears that certain primary beneficiaries were claiming the ownership of a portion of the trust res because certain of their children had died after the death of the testator. We think a construction of Clause 43 was essential and necessary. The appellants seem to take the position that the court could not be called upon to construe the clause until a life beneficiary who had a child or children living at the time of Smith's death had died leaving nochildren alive. This position strikes us as being too narrow. The same legal question was present in either situation. Under the circumstances a construction of Clause 43 of the will was an important and pressing question at the time the DeMotte petition was filed, and the construction made at that time was properly and necessarily broad enough to insure uniformity of administrative procedures.

Nor do we think the defendants who were defaulted in the DeMotte case can justly complain that Burns' 1946 Replacement, § 2-1057 was violated in that the relief granted exceeded the 6. relief demanded. We know of no reason why a trustee's petition for instructions can not properly embrace more than one subject. The parties could hardly avoid knowing that a construction of the clause was involved in the case. It must have been apparent to them that a construction of Clause 43 could not be had without determining the rights of all primary beneficiaries whose child or children had died after the testator died. A construction of Clause 43 was demanded by the petition and the court did not exceed the relief demanded when it construed that clause.

The appellants complain of our failure to determine whether the McAdams judgment was also res judicata. We think it was but we also think a discussion of it would unduly extend this opinion. A determination of the sufficiency of the DeMotte judgment settles the rights of these parties in this litigation, and we need go no further.

Petition for rehearing denied.

NOTE. — Petition for rehearing reported in 83 N.E.2d 798.