Pereira v. Pereira (IN)


Summary: Will construction favors vesting of estates as early as possible, in the absence of a clear manifestation of the contrary intention.


Pereira v. Pereira, 983 N.E.2d 605 (Ind. Ct. App. 2013).


Facts: Joseph Sleeper (Sleeper) owned approximately 358 acres. He executed a will that was submitted for probate in December of 1922. Sleeper left his wife Eva a life estate in the land and upon her death a subsequent life estate to Joseph W. McConnell and Margaret McConnell, the children of Sleeper’s friend Ralph McConnell. The will stated

“at the death of both [Margaret McConnell and Joseph W. McConnell] it is my will that said real estate shall pass to any child or children they may have surviving them, share and share alike in fee simple. Should said named children die without any issue left, it is my will that all of my said named and mentioned real estate shall be the sole and legal property of the Trustees of the Methodist Episcopal Hospital of the City of Indianapolis, Indiana, to have and to use the same if they may desire for said hospital use.”

Eva died in June of 1933, and was survived by Margaret McConnell and Joseph W. McConnell. Joseph W. McConnell died in 1989, leaving his children Joseph McConnell and Julia McConnell Tarr. Margaret McConnell died in 2011, leaving her adopted daughter Monica Pereira and her son William Pereira. Julia McConnell Tarr died in 2007, leaving her children John LeFebre and Karen LeFebre (Grandchildren).

After Margaret’s death in 2011, Joseph McConnell and William Pereira (Children) filed a suit to quiet title, naming as defendants Monica Pereira and the Grandchildren. The parties disagreed as to the construction of the will, and the trial court entered summary judgment based upon a generation skipping vesting process in which the death of Margaret or Joseph McConnell would determine how that ancestor’s interest would pass. It found that the grandchildren should receive one-third of the land (leaving Monica with no interest under the stranger to adoption rule). The Children appealed.


Holding: Affirmed. The parties disagreed as to the time in which Julia McConnell Tarr’s interest would vest. Namely, whether it required that she outlive the last life tenant to die. The time that the interest vests depends on the section of the will that states “and at the death of both said named children it is my will that said real estate shall pass to any child or children they may have surviving them, share and share alike in fee simple.” The court took notice of various other appellate rulings including ones that (1) favor the vesting of estates at the earliest opportunity, (2) presume words of postponement relate to beginning of enjoyment rather than vesting, and (3) hold that words of survivorship are presumed to relate to the death of the testator rather than the first taker. Based on these principles, the court held that upon the birth of the first child of either Margaret or Joseph W. McConnell, the interest vested and was subject to diminution when other children were born. For this reason, the holding of the lower court was affirmed.


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By: ATG Underwriting Department | Posted on: Fri, 06/14/2013 - 2:07pm