Elmer Gibson Devin

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.

Elmer married Emma Lucas on 02 Dec 1908 in Marion County, Indiana U.S.A.. Emma was born on 10 Dec 1887 in Cambridge City, Wayne, Indiana U.S.A.; died on 16 Apr 1919 in Logansport, Cass, Indiana U.S.A.. [Group Sheet]

1. Walter Devin was born on 09 Aug 1908 in Indiana U.S.A.; died on 26 Jan 1920 in Logansport, Cass, Indiana U.S.A..
2. Kenneth Carl Gibson Devin, Sr. was born on 09 Oct 1909 in Indianapolis, Marion, Indiana U.S.A.; died on 11 Oct 1980 in Dyer, Lake, Indiana U.S.A.; was buried in Fort Sheridan, Cook, Illinois U.S.A..

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 on 21 Jun 1875 in Gibson County, Indiana U.S.A.. Isabelle was born on 31 Dec 1856 in Indiana U.S.A.; died on 29 Dec 1930. [Group Sheet]

Notes:

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

Census:
1880 Gibson Co IN White River Twp p 323A

Notes:

See book "Evansville and Its Men of Mark" 1873 & "Nowlin Devin", (MSS)

DOB & POB from Ancestral File

Census:
1850 Gibson Co IN Princeton Twp p 20
1860 Gibson Co IN Pinceton-Patoka Twp p 1060 & 1061......

Was State Representative in 1841; per History of Gibson Co IN; FHC #0934905
Also prob. was County Commissioner in 1859 & 1861.

Per Tom Hughes: he died in 1864

Joseph married Nancy Robb on 07 Sep 1833 in Hazelton, Gibson, Indiana U.S.A.. Nancy was born on 08 Jun 1810 in Indiana U.S.A.; died on 05 Nov 1893; was buried in Warnock Cemetery, Princeton, Gibson, Indiana U.S.A.. [Group Sheet]

Notes:

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.

[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.

Notes:

Census:
1820 Gibson Co IN p 240......
1 male >45; 1 male 16-25; 3 males 10-15
1 female>45; 3 female 16-25; 2 females <10

POB from History of Gibson Co IN p. 55; FHC #0934905
This book gave YOM as 1793. Family moved to Warren County (near Bowling Green), Kentucky in 1798 & to Gibson County, Indiana in spring of 1808.
Moved to Indiana Territory March 1808 (Gilbert, Polly; Decendents of James Nowlin; updated 01.Aug.2001).

Represented Gibson Co in the Indiana constitutional convention of 1816.
Hist. of Gibson Co IN; SLC 977.235 H2p

IGI & Ancestral File say DOB 27 Mar 1769 or 22 Mar 1769
Per Hist. of Gibson Co IN DOB = 27 Mar 1769.

Bought the first lot sold in Princeton, IN.

Was Baptist minister who along with Joseph Logan and John Hightower, other Baptist preachers, established their ministry and several churches in the Warren County and Allen County, Kentucky, areas
in the late 1790s and 1800s.

Land Grant issued to Alexander Divan for 200 acres on the Sulphur Fork of Drake Creek in Warren County, Kentucky. Grant is recorded in Book 12 page 114. Surveyed 08.Aug.1799.

Alexander recorded a deed in Pittsylvania County Virigina relinquishing his rights in the estate of his father, William Devin, except for any property based on the future estate of his sister, Sarah. Written 21.Novemer.1803; recorded in Deed Book 13 page 537 on 16.January.1804. Witnessed by James Nowlin, John Emmerson, George Thomas, and James Devin.

Minister's Returns: Pittsylvania Co. Virginia; Bassett Historical Center, Bassett, Virginia Alex Divin and Sukey Nowling was mared July 19 1791; Minister not named. Looks like the handwriting of Richard Elliott - Mary Frances Reynolds Eggleston

Alexander married Susannah Nowlin on 10 Jul 1795 in Pittsylvania County, Virginia U.S.A.. Susannah (daughter of Bryan Ward Nowlin and Lucy Wade) was born on 12 Mar 1771 in Pittsylvania County, Virginia; died on 08 Nov 1846 in Gibson County, Indiana U.S.A.; was buried in Warnock Cemetery, Princeton, Gibson, Indiana U.S.A.. [Group Sheet]

Notes:

!Questions: Spelling of Name - Nowlin or Nolan
First name maybe Susan.
POB from History of Gibson Co IN p. 55; FHC #0934905
This book gave DOD as 8 November 1840.

The Devin Family, page 37 lists her DOD as 8 November 1846.

Census:
1830 Gibson Co IN p 159A (Suckey or Sukey)
2 males 20-30 1 female 50-60; 2 females 15-20

Was a second generation American. Her grandfather came from Ireland.

Via Ethel S. Mattingley FHC #0928908: Bible records at Washington Co IN
Historical Society show DOB as 12 Mar 1772.
Per Hist. of Gibson Co IN p 452: DOB = 12 Mar 1771

"The Devin Family", on page 37, says Susan is the daughter of Edward and Mary Wade Nowlin of Virginia. However, on page 2, a quote from the will of Bryan Ward Nowlin says Sucky is his daughter. Research by Anna Hudelson [Nowlin-Devin missive; 1929-1977] shows Edward Nowlin and Mary Wade to be the parents of Bryan Ward Nowlin; Susans paternal grandparents.

Notes:

It is possible that 9 July 1791 is their marriage bond date and 10 July 1795 is the date of their marriage.