Raynolds v. Hanna

• Citation: 55 F. 783
• Decision Date: 18 January 1893
• Docket Number: 4,743.
• Parties: RAYNOLDS v. HANNA et al.
• Court: U.S. District Court — Northern District of Ohio

55 F. 783

RAYNOLDS v. HANNA et al.

No. 4,743.

United States Circuit Court, N.D. Ohio, Eastern Division.

January 18, 1893

Francis J. Wing and J. Wm. Ball, for plaintiff.

Estep Dickey, Carr & Goff, for defendants.

JACKSON Circuit Judge.

Before taking up the exceptions of the defendant Brooks, trustee, to the master's report as amended, and filed herein May 4 1892, it is proper to consider the question which is again strenuously urged on behalf of the respondents,-- whether under the will of Robert Hanna, deceased, the defendants Cassius B. Hanna and wife, Hattie L., or either of them acquired any such beneficial interest or trust estate as can be reached and subjected by complainant to the payment of his judgment against them. The court has heretofore, in an opinion filed herein June 11, 1891, ^[1] given a construction to said will, which substantially answers this question in the affirmative, but at the request of counsel for defendants, and in the light of further argument, it has again re-examined the matter, with the result that the views already expressed and conclusions reached are rather confirmed than shaken. By the fourth item in the will the testator devised and bequeathed his entire estate to his executor, defendant Brooks, 'in trust to be disposed of by him as hereinafter provided. ' The trustee was invested with full, ample, and complete power to manage, direct, and control the property bequeathed and devised according to his own best judgment and discretion; it being the expressed wish and purpose of the testator to invest said executor and trustee 'with power to manage and control my entire estate according to his own judgment and discretion, the same as I could do myself, if living,' and 'subject only to, and be restrained only by, the special limitations herein imposed and expressed by me. ' Now, among the special limitations imposed and expressed by the testator to which the executor's discretionary power of management and control were to be subject are certain provisions made for the benefit of the testator's son, Cassius B., as for him and his family or children, set out in the seventh and eighth items of the original will and items 2 and 5 of the codicil, as follows:

'Item 7. I hereby authorize and direct my executor, as soon as convenient after my death, and in case my son, Cassius, shall so request, to purchase a home for him, at a cost not to exceed $12,000, taking the title to himself as executor and trustee, as aforesaid; the same to be kept as and for a home for Cassius, free of rent, so long as he desires so to occupy the same. But in the final settlement of my estate, as hereinafter provided, I direct that the money expended by my executor in insurance, taxes, and assessments on the home so occupied by Cassius, together with six per cent. interest per annum on the cost of said home for the time it shall be so occupied by him, shall be deducted from the amount that is to be paid to Cassius or his children, as is hereinafter provided, or, if my said executor shall deem it best to deduct the amount of said annual insurance, taxes, assessments, and interest from the annual income that is to be paid to Cassius or his children, as hereinafter provided, he is hereby authorized and directed to do so.

'Item 8. So far as the same is practicable in conformity with the other provisions of this will, I desire the income of my estate each year to be applied as follows: First, to the payment of taxes, insurance, assessments, and repairs that may be levied or become necessary to be made on any part of my estate, together with the necessary expenses of the administration of the same, including the compensation hereinafter provided to be paid to my executor; secondly, to the payment of the annuity of $2,000 hereinbefore provided for my wife, Harriet A. Hanna; thirdly, after the payment of all the items hereinafter mentioned, I desire the remainder of the yearly income or increase of my estate that shall be collected and received to be divided into two equal parts, one part to be expended by my said executor for the benefit of my son Cassius, and his family, so long as he, Cassius, shall live, or, in case my said executor shall deem it proper and best, but in no event otherwise, he may pay the whole or any part of such portion of the yearly net income of my estate (subject to the deductions as above provided for taxes, etc.) to my son, Cassius, in cash. The other of said equal parts into which the net yearly income of my estate is to be divided as provided in this section I direct my said executor to expend for the benefit of the children of my deceased daughter Arrial T. Whitacre, in such manner that each of said children shall have an equal and the same portion with the other. In case any of said children of my daughter Arrial should die without issue before the final division of my estate then the share of the income of my estate of such child or children so dying shall be divided between the other children of my daughter Arrial, or the issue of them,-- they, in such case, to take per stirpes, and not per capita; and in case any of the said children of my daughter Arrial should die before the final distribution of my estate, leaving issue, I direct that the share of the income of my estate which would be coming to such child of Arrial if living shall be paid to the issue of such child, share and share alike, and I hereby authorize my executor to pay in cash, if he shall deem best, the whole or any part of such share of the income of my estate as may be due to each of the children of my daughter Arrial, as aforesaid; he to take in such case the receipt of the guardian or other person who for the time being may be charged with the care or custody of said children, or either of them, for any payment made. And in the expenditure of income for the benefit of my son, Cassius, and his family, as well as for the children of my daughter Arrial, I desire my executor to have in view the maintenance and education of my grandchildren on a scale comporting with their condition and rank in life; and if, in the judgment of my said executor, the net annual income of my estate as above described cannot all be properly and judiciously expended or advanced to Cassius and his family and to the children of Arrial as hereinbefore described, I authorize and direct my executor to invest such surplus as may remain after what he deems a reasonable expenditure has been made for the benefit of the child or grandchild who would be entitled to it under the foregoing plan of distribution.' Item 2 of the codicil provides:

'In order to settle distinctly and made forever free from dispute that portion of item 8 of my said will which relates to the division and distribution of the annual net income of my estate, I hereby declare it to be my wish and will, and I do hereby accordingly direct, that the one half of said yearly net income which is to be expended for the benefit of my son, Cassius, and his family, is to be expended for his benefit only, until the time arrives when the final distribution of my estate shall be made under the provisions of said will, and to this extent are the words in said will directing said portion of income to be expended for his benefit, 'so long as he, Cassius, shall live,' to be modified and controlled; also the one half of said annual income which is to be expended for the benefit of Cassius, as aforesaid, shall, until expended or otherwise disposed of an provided in said item, be held and kept by my said executor in his possession in trust, to the end that the same may be applied as my said executor shall deem best, and not otherwise, for the benefit of my son, Cassius, and his family; also that any portion of said share of income which may be invested for the benefit of Cassius shall likewise be held and kept in his own possession, in trust by my said executor, the same to be expended for Cassius' benefit, or paid him at such times and in such amounts as he, my said executor, may deem best, and not otherwise.'

By the third item of the codicil the final distribution of the estate, if not sooner made, under the powers conferred by the will is directed to be made 'as soon as may be after the death of my son, Cassius, provided at that time the youngest child of my daughter Arrial then living shall have reached the age of majority;' and by the fifth item of said codicil it is declared that, 'in the event of my son, Cassius, should have no children living nor grandchildren living at the time of the final distribution of my estate, as provided in my said will, I direct my executor to retain in his own custody and possession one half of the whole estate as it may then exist, and hold the same in trust so long as Cassius may live, giving to Cassius so much of the annual net income of said one half as he may deem best, and at the death of Cassius said one half of my estate so retained and held to be by said executor distributed per stirpes among the children and grandchildren of my daughter Arrial.'

On the final distribution of the principal or corpus of the estate the children of Cassius then living and the children of the daughter Arrial or their issue were to share therein equally after equalizing advancements made to their respective parents by the testator. There has been no final distribution or division of the principal of the estate, and it is not material to the present case to determine when such division could or should be made by the executor, the son, Cassius being still alive, and the youngest child of the testator's daughter not attaining his majority until September 17, 1894. While the will gives the executor the amplest and most complete discretionary powers in the management and control of...