Johnson v. Burney Baptist Church
Johnson v. Burney Baptist Church
Opinion of the Court
The Decatur Circuit Court construed the will of the late Jennie Pumphrey contrary to the contention of the appellants. There is a judgment that they take nothing by reason of their complaint and they appeal.
In disposing of the case the court had before it the will involved and a stipulation of facts to the effect that Jennie Pumphrey died testate on June 12, 1951, and subsequently her will and a codicil thereto were duly admitted to probate. That at the time of her death she was a widow and left no heirs of her body surviving. The stipulation identifies all the beneficiaries named in the will in respect to the relationship of each to the testatrix and specifically designates those of her brothers and sisters who were alive when she executed her will and codicil and the children of those who were then dead. It further states that all of the beneficiaries so identified survived the testatrix.
There is no other evidence in the case but from it we gather that at the time Jennie Pumphrey made her will and when she died she had seven brothers and
The appellants contend that although they are not named in Item 5, a proper construction thereof brings them in. They argue that by her use of the word “remaining” the testatrix meant (1) her “surviving” brothers and sisters, and (2) the “surviving children” of her brothers who were then.dead. That it was the testatrix’ intention to bequeath her residuary estate to these two classes of persons whether individually named or not. That the appellant Johnson is a member of the first class and the appellant Owens is a member of the second and therefore each is entitled to share in the residuum. The court below rejected this contention and decreed that the appellants take only what is given them by specific bequest in Item 4 and that the residuary estate goes entirely to those specifically named as beneficiaries thereof. In this the appellants charge the court was in error.
It seems to us that there is no uncertainty or ambiguity in the will involved and therefore no need for the application of those rules of construction to which courts resort when the intention of the testator or testatrix is doubtful. Shriver v.
We are further fortified in this position by the fact that by the codicil to her will the testatrix revoked the specific bequests to Claude Johnson and Ruth Baker as provided by Item 4 and gave them one equal part of the residuum less the $500 given to their father Clarence Johnson. She then reaffirmed the.will in all other respects. The construction urged by the appellants would give the appellant Johnson and his children two equal parts of the residuum plus $500 and to the appellant Owens one equal part thereof plus $100. We find no evidence, in the will itself or extrinsic thereto, remotely suggesting that the testatrix intended any such disposition of her property. On the contrary, the conclusion is inescapable that she intended that the combined inheritance of the appellant Johnson and his children should equal that of each of her other brothers and sisters then living and the children of each of her brothers then dead except the appellant Owens, a child of her deceased brother Lawrence, whom she
Judgment affirmed.
Note. — Reported in 119 N. E. 2d 904.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.