Nancy Robb

Notes:

[Reports of cases decided in the Appellate Court of the
State of Indiana, Volume 48; by Indiana Appellate Court;
pages 379-383]
May Term, 1911.
Devin v. McCoy--48 Ind. App. 379.
Devin v. Mccoy, Trustee.

[No. 7,743. Filed February 21, 1911. Rehearing denied May
9, 1911. Transfer denied June 30, 1911.]

1. Wills.?Construction.?Purpose.?The object of construing a
will is to determine the testator's intention, p. 381.

2. Wills.?Trusts.?Termination.?A trust created by a will
bequeathing and devising to testator's two grandchildren
the share that their deceased father would have received,
"subject to the conditions hereinafter named," and
providing for a trustee to take and to hold such property
for such children "until the contingencies named in the
next succeeding clause of the will, in the meantime using
of the profits thereof enough only for their education and
economical support," and providing that "if [plaintiff]
dies before he has children born unto him, his share of
[testator's] estate shall go to his sister, * * * if she
survives him," is not a spendthrift trust, and terminates
upon the birth of a child to the plaintiff, pp. 381, 3S2.

3. Wills. ? "Contingencies." ? Meaning of. ? The word
"contingencies," as used in a will providing that the
trustee shall hold certain property "until the
contingencies named," imports some future event that may or
may not occur, p. 3S2.

4. Appeal.?Mandate.?Death.?Where appellant died before his
appeal was decided, the judgment will be made as of the
date of submission, p. 3S3.

From Gibson Circuit Court; Herdis Clements, Judge.

Suit by Elmer G. Devin against John R. McCoy, as trustee of
Elmer G. Devin and others. From a judgment for defendant,
plaintiff appeals. Reversed.

M. M. Bachelder, W. W. Medcalf and John 77. Miller, for
appellant.

John li. McCoy, 0. M. Welborn and J. E. McCullourjh, for
appellee.

Laiey, J.?This suit was brought by appellant against
appellee, for the purpose of obtaining au accounting by
John R. McCoy, trustee under the will of Nancy Devin,
deceased, and praying that said trustee be ordered to turn
over to appellant the property in his hands, upon the
theory that Devin v. McCoy?48 Ind. App. 379.

the trust created by the terms of said will had terminated
before the commencement of the suit.

Items five, six and seven of the will of Nancy Devin create
the trust here under consideration. It is necessary to the
decision of this case that a construction be placed on this
part of the will, and therefore we set out these items in
full.

"Item 5. All the residue of my estate and personal property
shall be divided equally among my children, Susan E.
Ragland and Sallie Devin, and my two grandchildren, Nellie
R. Devin and Elmer G. Devin, to receive the same share that
would have descended to James A. Devin (now deceased), who
was their father, and to take and receive under this will
subject to the conditions hereinafter named.

Item 6. 1 hereby nominate and appoint Henry L. Wallace as
trustee for Nellie and Elmer, and for each of them, who
shall take and hold and manage such of my estate as is
given to said grandchildren, until the contingencies named
in the next succeeding clause of the will, in the meantime
using of the profits thereof enough only for their
education and economical support, having view of the
probable value of their inheritance.

Item 7. If Nellie R. Devin dies before she has children
born unto her, her share of my estate shall go to her
brother, Elmer, if he survives her. If Elmer dies before he
has children born unto him, his share of my estate shall go
to his sister, Nellie, if she survives him, but if they
both die without having children born to them, their shares
shall be distributed to the other beneficiaries of item
five of this will."

The complaint sets out the will, and alleges that it was
duly probated after the death of the testator; that Henry
L. Wallace, who was named as trustee therein, died, and
that John R. McCoy was, by the Gibson Circuit Court,
appointed his successor; that appellant was lawfully
married on October 9, 1909, and that a child was born to
him, by virtue of said marriage, which was still living at
the time the suit was commenced.

A demurrer for want of facts sufficient to state a cause of
action was sustained by the trial court, and this is the
only error relied on for reversal.

Devin v. McCoy?48 Ind. App. 379.

It is contended by the attorneys for appellee that the
ruling of the lower court is correct, for the reason that
the complaint shows that the trust created by the will of
Nancy Devin had not terminated when this suit was
commenced. They take the position that the trust created by
said will was a spendthrift trust, that it was intended to
continue during the life of Elmer Devin, and that it
cannot, by the terms of the will creating it, terminate
before his death. Appellant contends that the trust was
terminated, so far as Elmer Devin was concerned, before the
action was commenced, by the marriage of Elmer Devin and
the birth of a child as shown by the complaint.

When did the testatrix intend that the trust created by her
will should terminate? This is the decisive question in
this case. In construing a will, effect should be given

1. to the intention and purpose of the testator, if this
can be gathered from the terms of the will. Was it

the purpose of the testatrix in creating said trust to
provide for the maintenance of appellant during his life,

2. and at the same time to secure it against his
improvidence and incapacity, and preserve the property
unimpaired to his heirs? If so, the trust would continue
during the life of the cestui que trust, and the position
of appellee should be sustained. We cannot think that the
provisions of the will creating this trust indicate such an
intention. Item six of the will does not expressly provide
that the trustee shall hold the estate given to Nellie
Devin and Elmer Devin during their lives, or the life of
either of them; but it does provide that he shall hold and
manage such estate until the contingencies arise that are
named in the next succeeding clause of this will, in the
meantime, using of the profits thereof enough only for
their education and economical support, having in view the
probable value of their inheritance.

A contingency is some future event that may or may not
occur. It is evident that the testatrix had in mind some
such Devin v. McCoy?48 Ind. App. 379.

event, upon the happening of which the trust was 3. to
terminate. Item seven of the will is not entirely clear as
to the contingency referred to in item six. It provides
that "if Nellie Devin dies before she has children born
unto her, her share of my estate shall go 2. to her
brother, Elmer, if he survives her. If Elmer dies before he
has children born unto him, his share of my estate shall go
to his sister, Nellie, if she survives him, but if they
both die without having children born to them, their shares
shall be distributed to the other beneficiaries of item
five of this will."

If we should hold that the termination of the trust
depended upon the death of the cestui que trust, this would
be to say that the termination of the trust depends upon
the happening of an event that is a certainty and not a
contingency. If we should give the will this construction,
the contingency that appellant might or might not have a
child or children born to him before his death would have
no effect in hastening or delaying the time of the
termination of the trust, as the trust would terminate at
such death, regardless of whether or not he had children
born during his lifetime. .

To our mind the provisions of the will under consideration
do not evince an intention on the part of the testatrix to
create a spendthrift trust. We do not think it was her
intention to tie up the property in the hands of the
trustee during the life of her grandchildren, for the
purpose of providing for their maintenance, and at the same
time securing it against their extravagance or
improvidence. The provisions of item seven seem rather to
indicate that it was her purpose to control the ultimate
disposition of her property, so that it might not go to
strangers or depart from those of her own blood, and that
she created this trust for the purpose of securing this
end. The provisions of this item in her will indicate that
she contemplated that one or both her grandchildren might
marry and die without Dunn «. Means?48 Ind. App. 3S3.

issue, and that the property, if given to them absolutely,
would go to the surviving husband or wife, to the exclusion
of the kindred, who were of the blood of the testatrix. To
prevent this result, she placed the property willed to her
grandchildren in the hands of a trustee, and provided that
he should take, hold and manage it until the happening of a
contingency which would prevent this result. True, the
birth of a child might not absolutely prevent this result,
for such child might die before its parent, and the cestui
que trust thus die childless. This consideration does not,
however, change our opinion as to the purpose of the
testatrix in creating the trust, as she was no doubt
willing to risk the possibility of the child's outliving
the parent. She evidently intended that if either of said
grandchildren married and had a child born, this
contingency should terminate the trust as to him, and he
would be entitled to the property willed to him. We
therefore hold that the complaint shows that the trust, as
far as appellant is concerned, was terminated before this
suit was commenced, by the happening of the contingency
provided for in item seven. The demurrer to the complaint
should have been overruled.

The death of appellant has been suggested, to the 4. court,
and the judgment in this case is reversed as of the date of
submission.



Census:
1850 Gibson Co IN Princeton Twp p 20
1860 Gibson Co IN Princeton-Patoka Twp p 1060 & 1061
1870 Gibson Co IN Patoka Twp p 305A

Mother, Nancy Robb, age 75, b. DC? living w/Nancy Robb
Devin in 1850

Per Tom Hughes: she died in 1884

Possibly born in Hazelton, IN per page 13 of "Ten
Generations of Rev. Alexander Devin"; J. Nell Truitt;
19981101.

!BURIAL:Ten Generations of Rev. Alexander Devin, Ten
Generations of Rev. Alexander Devin, Truitt, Joyce Nell,
dated 19981101; page 13

Nancy married Joseph Devin 7 Sep 1833, Hazelton, Gibson, Indiana U.S.A.. Joseph (son of Alexander Devin and Susannah Nowlin) was born 22 May 1805, Warren County, Kentucky U.S.A.; died 10 Mar 1864, Gibson County, Indiana; was buried , Warnock Cemetery, Princeton, Gibson, Indiana U.S.A.. [Group Sheet]

Notes:

!MARRIAGE: Gibson Co IN; SLC 977.235 V2i & SLC 977.235
V28g V.2

Census:
1850 Gibson Co IN Princeton Twp p 20 w/parents
1860
1870 Gibson Co IN Patoka Twp p 304A
1880 Gibson Co IN Princeton p 355A

Nancy married Nathaniel B. French 25 May 1854, Gibson County, Indiana U.S.A.. Nathaniel was born 20 Apr 1827, Patoka, Indiana; died 26 Jun 1896, Minneapolis, Minnesota; was buried , Warnock Cemetery Princeton, Indiana. [Group Sheet]

Notes:

Census:
1850 Gibson Co IN Princeton Twp p 20
1860 Gibson Co IN Princeton-Patoka Twp p 1060 & 1061
w/parents
1870 Gibson Co IN Patoka Twp p 305A w/mother

Notes:

Census:
1850 Gibson Co IN Princeton Twp p 20
1860 Gibson Co IN Princeton-Patoka Twp p 1060 & 1061
w/parents
1870 Gibson Co IN Patoka Twp p 332A

Notes:

Census:
1850 Gibson Co IN Princeton Twp p 20
1860 Gibson Co IN Princeton-Patoka Twp p 1060 & 1061
w/parents

Did she marry William S. Ragland 22 Jan 1861 in Gibson Co?

Susan married William Stump Ragland 22 Jan 1861, Indiana. William was born 26 Sep 1835, Warren County, Kentucky; died 4 Jun 1909, Warren County, Kentucky. [Group Sheet]

Notes:

Died in Mental hospital as a result of injury.

1850 Gibson Co IN Princeton Twp p 20
1860 Gibson Co IN Princeton-Patoka Twp p 1060 & 1061
w/parents
1870 Gibson Co IN White River Twp, p 360A living alone

Notes:

Census:
1850 Gibson Co IN Princeton Twp p 20
1860
1870 Gibson Co IN Patoka Twp p 295
1880 Gibson Co IN White River Twp p 323A

!MARRIAGE: Gibson Co IN 5-17; LAPL NR Gen 977.2 I3975-2

James married Isabelle J. Wheeler 21 Jun 1875, Gibson County, Indiana U.S.A.. Isabelle was born 31 Dec 1856, Indiana U.S.A.; died 29 Dec 1930; was buried , Crown Hill Cemetery Clay County, Missouri. [Group Sheet]

Notes:

Census:
1870 Gibson Co IN Patoka Twp p 304A w/parents
1880 Gibson Co IN Princeton p 355A w/parents (Laura B.)

Notes:

Census:
1870 Gibson Co IN Patoka Twp p 304A w/parents
1880 Gibson Co IN Princeton p 355A w/parents

Notes:

Census:
1870 Gibson Co IN Patoka Twp p 304A w/parents
1880 Gibson Co IN Princeton p 355A w/parents (Flora D.)

Flora married William Barton 19 Feb 1890, Saint Louis, Missouri . William (son of Sanford M. Barton and Elizabeth Devin) was born 1854, Gibson County, Indiana ; died 7 Aug 1893, Lewis County, MIssouri; was buried , Forest Grove Cemetery, Lewis County, MIssouri. [Group Sheet]

Notes:

Census:
1870 Gibson Co IN Patoka Twp p 304A w/parents
1880 Gibson Co IN Princeton p 355A w/parents

Notes:

Census:
1870 Gibson Co IN Patoka Twp p 304A w/parents
1880 Gibson Co IN Princeton p 355A w/parents

Notes:

Census:
1880 Gibson Co IN Princeton p 355A w/parents

Notes:

DoB and PoB from 1900 census for clay county missouri with
chambers.

Census:
1880 Gibson Co IN White River Twp p 323A w/parents (Ella R.)

Nellie married Albert Sidney Chambers 24 Jun 1896, Clay County, Missouri U.S.A.. Albert was born 28 Jul 1871, Missouri U.S.A.; died 8 Dec 1900, Missouri U.S.A.; was buried , Lawson Cemetery, Lawson, Ray, Missouri U.S.A.. [Group Sheet]

Notes:

Age at Death per Death Certificate was 33 years, 3 months,
17 days making DOB = 25.July.1877.

DOD from Emma's Marriage affadavit when she married Samuel
Durocher.

Left a son who inherited Gibson Co. Ind. property (The
Devin Family; page 39).

Census:
1880 Gibson Co IN White River Twp p 323A; w/parents.
1900 Clay Co MO Soundex: ED 17 Sh 2 L 75; step-son of
Thos. S. McMullin.
1910 Marion Co IN Center Twp 8th Ward, p.224; ED 145, Sh6A;
age 31, b. IN.
Occupation: Pipe/Paper Cleaner; Employer: for self.
They stated they had been married three years.

!NAME:The Devin Family (manuscript), The Devin Family
(manuscript), Hofstetter, Dessa, circa 1962

!NAME:Venable, Karen L, Venable, Karen L, FGS dated
24.Jan.2004

!BIRTH:Venable, Karen L, Venable, Karen L, FGS dated
24.Jan.2004

!DEATH:Venable, Karen L, Venable, Karen L, FGS dated
24.Jan.2004

!BURIAL:Venable, Karen L, Venable, Karen L, FGS dated
24.Jan.2004

Elmer married Emma Lucas 2 Dec 1908, Marion County, Indiana U.S.A.. Emma was born 10 Dec 1887, Cambridge City, Wayne, Indiana U.S.A.; died 16 Apr 1919, Logansport, Cass, Indiana U.S.A.. [Group Sheet]

Notes:

County Health Office, Logansport, IN: Devin, Walter; Death
Date: Jan 26, 1920; Location: Eel Township; Age: 11 yr;
Sex: Male; Color: W; Source Notes: The source of this
record is teh book H-20 on page 88 within the series
produced by the Indiana Works Progress Administration.

Walter Devin was born prior to his mother's marriage to
Elmer Gibson Devin. Since he died at age 11, there is no
way to tell whether or not Elmer was Walter's birth father.

Census:
1910 Marion Co IN Center Twp 8th Ward, p.224; ED 145, Sh6A;
age 1 or 2, b. IN.

!NAME:Venable, Karen L, Venable, Karen L, FGS dated
24.Jan.2004

!BIRTH:Venable, Karen L, Venable, Karen L, FGS dated
24.Jan.2004

!DEATH:Venable, Karen L, Venable, Karen L, FGS dated
24.Jan.2004

Notes:

Name, info from Judy Carter. Per Judy her father was a
career Marine. She says he used to say he was 14 when he
ran away for the Boy's Home in Kansas City, MO and lied
about his age to join the service. He retired in 1949 or
1950 because we moved from San Diego to Princeton IN for
sure in 1950.

per Judy about his post military employment: "He went to
work for International Harvestor in Evansville, IN for
around five years. Got laid off, and in 1956 or 57 we moved
to Chicage Heights, IL and he went to work for Youngstown
Sheet & Tube Steel Mill in Indiana Harbor, IN (which was
about a 25 mile drive for him from our house in IL). He was
a Guead and retired from there about 1978 and died in Dyer,
IN in 10/7/1980."

Census:
1910 Marion Co IN Center Twp 8th Ward, p.224; ED 145, Sh
6A; age 1 or 2, b.IN.
1930 Guam, US Navy & Military Reservations & Ships, ED 13,
Sh 2B; age 20, b.IN.

!NAME:Venable, Karen L, Venable, Karen L, FGS dated
14.Jan.2004

!BIRTH:Venable, Karen L, Venable, Karen L, FGS dated
14.Jan.2004

!DEATH:Venable, Karen L, Venable, Karen L, FGS dated
14.Jan.2004

!BURIAL:Venable, Karen L, Venable, Karen L, FGS dated
14.Jan.2004

Kenneth married Minta Mildred Ferrel 29 Dec 1940, Yuma, Yuma, Arizona U.S.A.. Minta was born 8 Aug 1916, Gravette, Benton, Arkansas U.S.A.; died 5 Sep 1985, West Chicago, DuPage, Illinois U.S.A.; was buried , Fort Sheridan, Cook, Illinois U.S.A.. [Group Sheet]