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MERRILL v. WIMMER

No. 2-1282A424.

453 N.E.2d 356 (1983)

Dennis A. MERRILL and Walter O. Merrill, in Their Capacities As Two of the Three Co-Executors of the Last Will and Testament of Newell M. Merrill, Deceased; Dennis A. Merrill and Walter O. Merrill in Their Capacities As Trustees of the Trust Purported to Be Established by Item 3 of the Last Will and Testament of Newell M. Merrill, Deceased; Dennis A. Merrill; Walter O. Merrill; Judith I. Yarling; Richard Dennis Merrill; Kathryn Jo Anderson; Margaret Yarling Ruegg; Cynthia Lou Rink; and Virginia Beth Yarling, Appellants (Petitioners below), v. Wayne O. WIMMER, Co-Executor of the Estate of Newell M. Merrill, Deceased; Barbara Jean Merrill; and the Unborn Grandchildren of Newell M. Merrill, Deceased, Appellees (Respondents below), Pamela Sue Yarling, Appellee (Petitioner below), Erpha B. Merrill, Appellee (Non-Participating Interested Party below).

Court of Appeals of Indiana, Fourth District.

Rehearing Denied October 19, 1983.

Attorney(s) appearing for the Case

Dan R. Winchell, Baker & Daniels, Indianapolis, Philip S. Cooper, Busby, Austin, Cooper & Farr, Anderson, for appellants.

Larry E. Swick, Wimmer, Lockwood & Swick, Elwood, for Wayne O. Wimmer.

Stephen D. Clase, Braddock & Clase, Anderson, attorney of appellee-guardian ad litem.

CONOVER, Presiding Judge.

Appellants, the majority of beneficiaries under the will of Newell M. Merrill (Newell), appeal the trial court's decision construing Newell's will.

We reverse.

ISSUE

Did the trial court err by modifying some trust provisions and upholding others under the rule against perpetuities?

FACTS

In 1970, Newell executed a will containing a residuary trust. Essentially, it devised the income to his three...

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