MEMORANDUM DECISION
Case Summary
[1] Barbara (“Bobbi”) J. Smith died testate on December 15, 2019, one day after her husband Cecil Smith died. Bobbi and Cecil had two children together, Toby A. Smith and Shannon Smith, while Bobbi also had two children, Patrick Barnes and Tammy Montana, by a prior marriage. Bobbi and Cecils joint will called for distributions to be made so that the couples estate would be split into halves, with half of the estate going only to the children Cecil and Bobbi had together, and the other half split amongst all of Bobbis children. Toby predeceased Bobbi so Regan Smith, his only daughter, was substituted in his place. Barnes died sometime after Bobbi, so his distribution was directed to the Estate of Patrick Barnes (“Barness Estate”). The personal representative of the Estate of Barbara J. Smith (“Bobbis Estate”), Shannon, eventually entered a final accounting dividing the couples estate so that “Cecils half” of the estate would be evenly divided between Shannon and Toby, while “Bobbis half” would be evenly divided between Shannon, Toby, Montana, and the Barnes Estate. This accounting resulted in in 3/8 of the Bobbis Estate going to Shannon, another 3/8 going to Toby, to be directed to Regan, 1/8 going to Montana, and 1/8 going to Barness Estate. Following a hearing, the trial court approved the distribution on February 9, 2021, awarding 3/8 shares of Bobbis estate to Shannon and Regan and 1/8 shares of Bobbis estate to Tammy and Barness estate. Barness estate appeals, arguing that the trial court erred in its interpretation of Bobbis will, and that each of Bobbis children, or their heirs or estates, should have received an equal 1/4 share. Because we believe that the trial court correctly interpreted Bobbis will to honor her and Cecils intent, we affirm.
Facts and Procedural History
[2] Bobbi died testate on December 15, 2019, one day after her husband Cecil died. Bobbi and Cecil had two children together, Toby and Shannon, and Bobbi also had two children by a prior marriage, Barnes and Tammy. When Barnes died sometime after Bobbi, but before distribution of Bobbis estate, Ashley Victoriano became the administrator of the Barness estate.
[3] Bobbis last will and testament in force at the time of her death directed the following:
BEQUESTS:
We direct that after payment of all our just debts, our property be divided as follows: Cecils half to be divided between Toby A and Shannon Smith.. [sic]
Bobbis half to be divided between Toby A. Smith, Shannon M. Smith, Patrick Barnes and Tammy Montana. In the event that one of us precedes the other in death, we both wish that in the event the remaining spouse should remarry that the new spouse would not be benefited [sic] any of the property, all properties should still be divided only as above mentioned when the remaining partner expires.
Appellants App. Vol. II p. 15. On November 2, 2020, the personal representative of Bobbis Estate, Shannon, eventually entered a final accounting dividing the couples estate so that “Cecils half” of the estate would be evenly divided between Shannon and Toby, while “Bobbis half” would be evenly divided between Shannon, Toby, Montana, and the Barnes Estate. This accounting resulted in in 3/8 of the Bobbis Estate going to Shannon, another 3/8 going to Toby, to be directed to Regan, 1/8 going to Montana, and 1/8 going to Barness Estate. On November 2, 2020, Barness estate objected to the proposed distribution, arguing that the correct distribution would be for each of Bobbis children to receive an equal 1/4 share of Bobbis Estate. The trial court held a hearing on January 12, 2021, to determine the final accounting, settle the accounts, determine the beneficiaries under the will, and for authority to distribute assets from Bobbis estate. On February 9, 2021, the trial court entered an order approving the final accounting, awarding a 3/8 share of the estate, or $158,228.91, each to Shannon and Regan, and a 1/8 share of the estate, or $52,742.98, each to Tammy Montana and Barness estate.
Discussion and Decision
[4] “Construction of the terms of a written contract is a pure question of law for the court, reviewed de novo.” Harrison v. Thomas, 761 N.E.2d 816, 818 (Ind. 2002).
Additionally, we note that when examining a will, the primary purpose is to determine and carry out the intent of the testator. In re Estate of Grimm, 705 N.E.2d 483, 498 (Ind. Ct. App. 1999). The interpretation, construction and legal effect of a will is a question to be determined by the court as a matter of law. Hershberger v. Luzader, 654 N.E.2d 841, 842 (Ind. Ct. App. 1995), trans. denied. Words contained in a will are to be understood to have been used by the testator in their common and ordinary sense and meaning. Grimm, 705 N.E.2d at 498. If the language in a will is unambiguous and clearly expresses the testators intent, the express language of the will must govern. Id.
In re Estate of Cashen, 715 N.E.2d 922, 924 (Ind. Ct. App. 1999). “The will in all its parts must be considered together. Keck v. Walker, 922 N.E.2d 94, 100 (Ind. Ct. App. 2010). “When construing the language of a will, we should strive to give effect to every provision, clause, term, or word if possible.” Id.
[5] Barness estate contends that the trial court erred when it accepted Bobbis estates final accounting, resulting in a split where Bobbi and Cecils children received 3/8 shares while Bobbis children from a previous marriage only received 1/8 shares. Specifically, Barness estate argues that it was not Bobbis intent to distribute her estate unevenly, and that the trial court erred because, when facing ambiguity, wills should be construed to dispose of property as if the deceased had died intestate. Appellants App. Vol. II p. 15. We disagree. There is nothing in the will that suggests that, if Cecil predeceased Bobbi, there should be a reason to ignore the provision giving half of the estate to Cecils children. In fact, the will specifically states the intent that “[i]n the event that one of us precedes the other in death” Bobbi and Cecil wanted all properties to “still be divided only as above mentioned when the remaining partner expires[,]” even if a surviving spouse were to remarry. Appellants App. Vol. II p. 15. Further, the fact that the will identifies the portions to be split among Bobbis children and Cecils children as “Bobbis half” and “Cecils half” underscores the couples intent to distribute the estate in this manner, rather than awarding each of Bobbis children a 1/4 share. Appellants App. Vol. II p. 15. “When construing the language of a will, we should strive to give effect to every provision, clause, term, or word if possible.” Keck, 922 N.E.2d at 100. The language in the will supports the final accounting and the trial courts conclusion that this distribution was Bobbis intent. “[W]hen examining a will, the primary purpose is to determine and carry out the intent of the testator.” Grimm, 705 N.E.2d at 498.
[6] The judgment of the trial court is affirmed.
Bradford, Chief Judge.
Robb, J., and Altice, J., concur.