Abbott v. Wagner
| Decision Date | 11 April 1922 |
| Docket Number | 21869 |
| Citation | 188 N.W. 113,108 Neb. 359 |
| Parties | CHAUNCY ABBOTT, JR., ET AL., APPELLANTS, v. FRANCES R. WAGNER ET AL., APPELLEES |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: WILLIS G. SEARS JUDGE. Affirmed in part, and reversed in part.
AFFIRMED IN PART, AND REVERSED IN PART.
Stout Rose, Wells & Martin, for appellants.
William Baird & Sons, contra.
Heard before MORRISSEY, C. J., FLANSBURG and ALDRICH, JJ HOSTETLER and MORNING, District Judges.
Nathan W. Wells died on the 12th day of August, 1909, leaving a last will which was duly admitted to probate in the surrogate court of Ulster county, New York, that being the place of his domicile. Omitting the attestation clause and the signature, the will is as follows:
Frances R. Wells, surviving widow of the testator, named in said will as executrix, was appointed and duly qualified and continued to act as such executrix until the estate was finally closed. Settlement and distribution of the estate and discharge of the executrix was had January 9, 1911. While the estate was pending the widow married the defendant Ernest O. Wagner, and she is designated in this proceeding as Frances R. Wagner. Since the final decree was entered in said estate, and on April 2, 1916, the mother of testator, who was one of the remaindermen named in the fourth paragraph of said will, died leaving as her only heir Chauncy Abbott, half-brother of testator, who was the other remainderman named in said paragraph. On July 27, 1918, said Chauncy Abbott died leaving as his only heirs the plaintiffs in this case. On December 2, 1919, plaintiffs commenced this action in the district court for Douglas county, as the only heirs of Chauncy Abbott, deceased, against Frances R. Wagner, Ernest O. Wagner, her present husband, Wells-Abbott-Nieman Company, a corporation, having its principal place of business at Schuyler, Nebraska, and the York Milling Company, a corporation, having its principal place of business at York, Nebraska. Summons was personally served upon the defendant Ernest O. Wagner in Douglas county and on the two corporation defendants in Colfax and York counties, respectively. Frances R. Wagner, being a non-resident of, and not being found in, this state, the affidavit required by statute for constructive service was duly filed and summons was thereafter served upon her at her home in Connecticut.
The petition alleges the death of the testator, sets out his will in full, alleges that it was duly probated in the surrogate court of Ulster county, New York, the domicile of the testator, and that defendant, Frances R. Wagner, formerly Frances R. Wells, surviving widow of testator, was appointed and qualified as executrix; that the estate was closed and the executrix discharged on January 9, 1911; that Anna D. Fuller, mother of the testator, died April 2, 1916, leaving Chauncy Abbott, the half-brother of testator, as her sole heir, and that said half-brother died July 27, 1918, leaving plaintiffs as his only heirs; that at the time of making her final report there remained in the hands of said executrix, after making all proper deductions, personal property of the value of $ 152,067.19, including 936 shares of the capital stock of the defendant Wells-Abbott-Nieman Company and 200 shares of the capital stock of the defendant the York Milling Company, all of which personal property was, by said surrogate court, distributed to and received by said defendant Frances R. Wagner, as residuary legatee under said will, and that she claimed and still claims all of said property in her own right, with full power to use, enjoy and dispose of it as she may deem fit, without regard to the rights of the plaintiffs, except in so much of the property as may remain undisposed of at her death. It is further alleged that said Frances R. Wagner and her present husband, the defendant Ernest O. Wagner, are hostile and antagonistic toward the plaintiffs, and have conspired and are conspiring to so manage the property of said estate as to wrongfully and fraudulently deprive the plaintiffs of their interest therein; that pursuant to said wrongful and fraudulent scheme, and in violation of her fiduciary relation toward plaintiffs, said Frances R. Wagner is wrongfully and fraudulently asserting her alleged right to use and dispose of said property so received under said will, and, in contravention of the rights of plaintiffs in said property, has already transferred by sale, as well as gift, large and valuable portions of said property, and has given the said shares of stock in said corporations to her husband, the defendant Ernest O. Wagner, without consideration, with the fraudulent intent to deprive plaintiffs of their interest in said property; that said Ernest O. Wagner is now wrongfully asserting full right, title and interest in said shares; that said Frances R. Wagner is threatening to wrongfully and unjustly dispose of still other large and valuable portions of said property to the like detriment of plaintiffs; that the said Frances R. Wagner, instigated and encouraged by her husband, Ernest O. Wagner, has undertaken to so manage, cover up and disguise her dealings with the said property that the plaintiffs will be deprived of that interest in said property to which, under said will, they are entitled, and that she will continue this line of conduct, in violation of the rights of plaintiffs in said property, and of her duty toward plaintiffs under said will with relation thereto, unless restrained by this court; that said Frances R. Wagner has full knowledge of her dealings with reference to said property, but plaintiffs have no means of knowing in detail, though, from such information as they have, they believe these dealings to have been wrongful and fraudulent and designed to deprive plaintiffs of that property which it was the intention of said testator to give them by his will; that plaintiffs did not discover the fraud attempted by defendants Frances R. Wagner and Ernest O. Wagner, as complained of, until within two years prior to the filing of the petition; that the threatened injury is irreparable and that there is no adequate remedy at law. The prayer, in substance, is that the alleged gifts of said shares of corporation stock be canceled, and that the corporation defendants and their officers be restrained from recognizing, or in any way giving effect to, the said gifts; that said Ernest O. Wagner be restrained from in any way meddling with, or attempting to assert any control over, the property of which his wife, the said Frances R. Wagner, is custodian or trustee under said will; that said Ernest O. Wagner be declared and held by the court to be constructive trustee for the benefit of plaintiffs, under said will, of any and all property of said estate of which he has become possessed in violation of said will; that said will be construed and the rights of plaintiffs defined thereunder; that said Frances R. Wagner be declared a trustee of the property of said testator for the benefit of plaintiffs as set out in said will; that she be required to account to the court for her dealings with reference to said property, and that she be required to bring into court all books, papers, records, and other data which may enable the court to determine what her dealings have been, and that she be required to give good and sufficient security for the proper discharge of her duties under said will for the benefit of plaintiffs, and that, in the event of her failure to do so, the court require her to execute a proper conveyance of all said property, other than such as the court shall find she was entitled to use for her own benefit, and that the conveyance be made under order of court to such person as the court may approve as a suitable trustee to hold the property in question and administer it in accordance with the wishes of said testator as disclosed by his will, and that defendants Frances R. Wagner and Ernest O. Wagner be...
To continue reading
Request your trial