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COA rules in favor of grandchildren in will dispute

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The Indiana Court of Appeals had to interpret a handwritten will from 1917 in a dispute among those who stood to inherit land in Benton County. The appellate court determined that the trial court properly ruled that John and Karen LeFebre could collectively receive a one-third share in the acreage.

In William Pereira and Joseph McConnell v. Monica Pereira, John LeFebre and Karen LeFebre, 04A05-1205-PL-241, Joseph Sleeper created a will that bequeathed 358 acres of land to his wife and upon her death to Margaret I. McConnell and Joseph W. McConnell, the children of Sleeper’s friend. His will said he wanted the land to pass to any child or children surviving them, “share and share alike in fee simple.” If there are no children, then the land should go to an Indianapolis hospital.

Eva Sleeper died in 1933, survived by Margaret and Joseph W. McConnell. They jointly inherited the second life estate. Joseph W. McConnell died in 1989, survived by Joseph McConnell and Julia McConnell Tarr. Julia McConnell Tarr died in 2007 and was survived by John and Karen LeFebre, referred to in the court opinion as the grandchildren. Margret McConnell died in January 2011 and was survived by adopted daughter Moncia Pereira and biological son William Pereira.

Joseph McConnell and William Pereira filed a complaint to quiet title naming Monica Pereira and the grandchildren. Tarr’s estate moved to intervene. The trial court entered summary judgment, ruling the grandchildren could collectively receive a one-third share in the acreage based on the construction of the will as “contemplat[ing] a generation skipping vesting process so that the death of either Margaret I. Pereira (McConnell) or Joseph W. McConnell establishes the class to which that ancestor’s interest passes and thus closes the class by the ancestor’s death and that both ancestors need not die before the class is determined.”  

Joseph McConnell and William Pereira, referred to as the children in the opinion, appealed. They argued that the will requires that any child of the McConnell siblings must survive both the siblings in order to receive a share and because Tarr didn’t survive her aunt, the grandchildren have no claim to acreage. The grandchildren argued the trial court properly construed the will to provide that Tarr became a vested member of the remainder class at her birth, or at the latest, when her father died.

The COA cited Alsman v. Walters, 184 Ind. 565, 106 N.E. 879 (1914), and Coquillard v. Coquillard, 62 Ind. App., 113 N.E. 474 (1916), in affirming the trial court.

“… we likewise conclude that the devise in fee simple resulted in an immediate gift, with an intervening life estate. The intended class, the McConnell siblings’ children, was identified and had no such child been born, the alternative beneficiary was Methodist Hospital of Indianapolis,” Judge L. Mark Bailey wrote. “However, the McConnell siblings were not childless. Vesting occurred when the first child in the class was born; however, the class was open and the interest of the first child was subject to diminution of shares to let in others born during the life tenancy. When Julia McConnell Tarr was born, she was a class member. The trial court properly found that she had a vested interest, not contingent upon outliving the last surviving life tenant.”

 

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  1. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  2. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  3. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  4. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  5. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

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