176 F. 896 (7th Cir. 1910), 1,609, Wilmerton v. Wilmerton

Docket Nº:1,609.
Citation:176 F. 896
Party Name:WILMERTON v. WILMERTON et al.
Case Date:January 04, 1910
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 896

176 F. 896 (7th Cir. 1910)

WILMERTON

v.

WILMERTON et al.

No. 1,609.

United States Court of Appeals, Seventh Circuit.

January 4, 1910

The bill was by appellant, a citizen of Iowa, against appellees, citizens of Illinois, the appellee, William W. Wilmerton, being made defendant both in his own right and as executor of the will of William Wilmerton, deceased; and was to recover complainant's one-half share in $12,442.03, together with interest thereon, said to be due to appellant under the will of William Wilmerton, deceased, and wrongfully withheld by appellee, William W. Wilmerton, as executor of such will. A demurrer to the bill having been sustained, the bill was dismissed for want of equity.

The salient facts, stated in the bill, are as follows: On January 12, 1904, William Wilmerton, deceased, executed his will, wherein there was bequeathed to the appellee, Louisa Little, and to appellant, Frank Wilmerton, daughter and son respectively of the testator, 'notes and moneys to the amount of $75,000, as per contract to be managed by said bank (The Central Trust and Savings Bank of Rock Island) for the benefit of my estate. ' The remainder of the estate, after three other specific bequests, went to William W. Wilmerton, appellee, amounting, after the deduction of the other bequests, to considerably more than $75,000 in value. The trust, recited in the contract with the bank, was as follows:

'The said party of the first part (the bank), shall collect and receive the interest and principal of the said notes and securities at maturity, pay the income thereof to said party of the second part William Wilmerton, on demand,

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and reinvest the principal thereof as speedily as it is able to, after the receipt of the same, and upon the death of the said party of the second part, to account for all said property to the estate of the said party of the second part. The said party of the first part, in and about the said collecting of interest, principal, and re-investment, to be held to the exercise of the same degree of care as it would of its own property. * * *'

At the date this contract was entered into, William Wilmerton was about eighty years of age, and at the date the will was executed was a little past eighty-one years of age; but on both dates was of sound and disposing mind and memory. Subsequently Wilmerton became insane, and on the twelfth day of June, 1906, one Thomas J. Medill was duly appointed conservator of his estate, and forthwith took possession and control of the estate, except so much thereof as was, at the time, in the care, custody and control of the trustee above mentioned. Wilmerton, up to the time of his death, November 26th, 1907, did not recover his reason.

S. S. Gregory, for appellant.

H. A. Weld, for appellees.

Before GROSSCUP, BAKER, and SEAMAN, Circuit Judges.

GROSSCUP, Circuit Judge (after stating the facts as above), delivered the opinion:

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