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Irish v. Profitt

MAY 22, 1975.

HAROLD IRISH ET AL., PLAINTIFFS-APPELLEES,

v.

H.J. PROFITT ET AL., DEFENDANTS — (CHARLES A. FABB ET AL., DEFENDANTS-APPELLANTS.)



APPEAL from the Circuit Court of Logan County; the Hon. JOHN T. McCULLOUGH, Judge, presiding.

MR. PRESIDING JUSTICE SIMKINS DELIVERED THE OPINION OF THE COURT:

Rehearing denied June 18, 1975.

Defendants appeal from an order of the circuit court of Logan County granting partition of 400 acres of farmland devised by Article III of the will of John Wilson Robinson, who died on September 8, 1907, and whose will was admitted to probate on October 21, 1907. The issue before this court is whether the trial court erred in its interpretation of Article III and in its disposition of the farmland.

In Article III, John Wilson Robinson (hereafter referred to as testator) devised life estates in the farmland in question to his nephew, Cincinnatus McLean, and to Benjamin and William McLean, children of the said Cincinnatus McLean. The testator further provided as follows:

"* * * at the death of the last surviving of said children [Benjamin and William McLean] and nephew [Cincinnatus McLean] said lands shall be divided among the descendants of the children * * * and if no such descendants are then living said lands shall be equally divided among the other beneficiaries of this will * * *." (Emphasis added.)

It is established that the date of distribution of the Article III property was August 5, 1969, the date of death of the last surviving life tenant, William McLean. It is also established that all the named devisees in Article III have died with no descendants surviving them. Therefore, it is agreed by all parties that said property "shall be divided equally among the other beneficiaries of this will * * *." It is the interpretation of this clause and the interests created thereby that is in dispute here.

It is first necessary to summarize the other relevant provisions of the will. Article II and Articles IV through VIII are similar to Article III in that they devise life estates in farmland to certain named legatees, usually a niece or nephew and his or her children or, at least, some of them. It is then provided that at the death of the last surviving named life estate legatee the land shall be divided among the descendants of certain named legatees, usually the descendants of certain children of the named niece or nephew. The life estate beneficiaries in Articles II through VIII of the will and their relationship to the testator are as follows:

1. James McLean, nephew 2. Frederick McLean, grandnephew 3. Lida C. McLean, grandniece 4. Mary Snyder, grandniece 5. Cincinnatus McLean, nephew 6. Benjamin McLean, grandnephew 7. William McLean, grandnephew 8. Maggie Stitt, niece 9. Wilse Stitt, grandniece 10. Don Stitt, grandnephew 11. Andrew P. Robinson, nephew 12. Elwynn P. Robinson, grandniece 13. Clark Robinson, grandnephew 14. Drew Robinson, grandnephew 15. John R. Bostwick, nephew 16. John W. Bryant, grandnephew 17. Lida Meyer, grandniece 18. Ione Bryant, niece 19. Annie S. Irish, grandniece 20. John W. Irish, great-grandnephew 21. Harold R. Irish, great-grandnephew

Article IX grants timber rights to 18 of the above named devisees in Articles II, III, and V through VIII for 5 years on the tract of farmland devised by Article IV to Maggie, Wilse and Don Stitt. Article XI bequeaths household furniture and various personal effects to Ione Bryant, a niece and life estate devisee under Article VII, and Annie S. Irish, a grandniece and life estate devisee under Article VIII. Article XIV is a residuary clause which states that, "I hereby wish and direct that all the stock agricultural implements and grain together with all other property owned by me at the time of my death and not otherwise disposed of in this instrument shall be equally divided among the following * * *." There are 19 residuary legatees, all of whom were life estate devisees under Articles II through VIII, with the exception that John Bostwick is not a residuary legatee and Wilson Irish is added as a residuary legatee, and only Wilse Stitt and not her mother, Maggie Stitt, or her brother, Don Stitt, is named a residuary legatee. Article XVII devises any tract of land not disposed of to the owner of the land adjoining it (the life estate devisees under Articles II through VIII) upon the same terms as the adjoining land is given.

Article X makes specific bequests to named individuals none of whom were life estate devisees under Articles II through VIII or residuary legatees under Article XIV. These legatees, their relation to the testator, and the amount of their bequest is as follows:

1. Mary Milligan, sister, $50 2. Sarah McCoy, sister, $1000 3. Joseph McCoy, nephew, $300 4. Frederick Bostwick, nephew, $150 5. Darius Hicks, nephew, $200 6. Minnie Irish, grandniece, $200 7. Hannah Robinson, sister, $5 8. Heirs of Frank Hicks, nephew, $25 9. Mary Prather, niece, $50 10. Bell Eggleston, niece, $500 11. Mary Bostwick, grandniece, $50 12. Grace Bostwick, grandniece, $100 13. Nettie James, grandniece, $50 14. Charley McLean, grandnephew, $50 15. Nellie McLean, grandniece, $280

The instant action was initiated on January 6, 1971, when plaintiffs-appellees Harold Irish, John Irish, Clark Robinson, and Wilse Stitt filed a complaint for partition of the 400 acres of farmland devised by Article III of the will. An order for partition was entered by the Logan County Circuit Court on February 1, 1974. It is from this order that various defendants-appellants have perfected the instant appeal.

The trial court in its final partition order stated that since Benjamin and William McLean died leaving no descendants surviving, title to the land in question passed to "the other beneficiaries" of the will of John Wilson Robinson. The court also affirmed its previous ruling that:

"The court finds that it was not the intention of the testator that all persons who were named in the Will should share in the subject real estate in the event the two nephews, Benjamin and William, died leaving no descendants. The clause `if no such descendants are then living said lands shall be equally divided among the other beneficiaries of this Will' did not include all beneficiaries named in the Will."

The court then held that the land in Article III passed to those persons who received interests in farmland under Articles II through VIII of the will on the same basis that the real estate would have passed to them under each respective article of the will as of August 5, 1969, the date of distribution. Hence, those persons given a life estate in Articles II through VIII are given a life estate in the Article III property and the remaindermen are given a remainder in the Article III property. The court further stated that the individuals determined to be beneficiaries did not have to be alive on August 5, 1969, and that the shares of individual beneficiaries who died before that date should go to their heirs. Under the trial court's final order, the individuals receiving the Article III property and their respective shares are as follows:

1. Plaintiff-appellee John Irish (life estate devisee under Article VIII) — life estate in an undivided one-tenth interest with remainder to descendants who survive him.

2. Plaintiff-appellee Harold Irish (life estate devisee under Article VIII) — life estate in an undivided one-tenth interest with remainder to descendants who survive him.

3. Clark Lee Robinson (descendant of Elwynn Robinson, life estate devisee under Article V) — an undivided one-tenth interest (not a party to this appeal).

4. Plaintiff-appellee Clark Robinson (life estate devisee under Article V) — life estate in an undivided one-tenth interest with ...


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