Bird v. Stein, 14228.

• Decision Date: 08 May 1953
• Docket Number: No. 14228.,14228.
• Citation: 204 F.2d 122
• Parties: BIRD et al. v. STEIN et al.
• Court: U.S. Court of Appeals — Fifth Circuit

204 F.2d 122 (1953)

BIRD et al. v. STEIN et al.

No. 14228.

United States Court of Appeals Fifth Circuit.

May 8, 1953.

Frank E. Everett, Jr., Brunini, Everett, Grantham & Quin, Vicksburg, Miss., for appellants.

H. P. Farish, W. C. Keady and Edward J. Bogen, Farish, Keady & Campbell, Greenville, Miss., for appellees.

Before HOLMES, STRUM, and RIVES, Circuit Judges.

HOLMES, Circuit Judge.

The appellants brought this suit to obtain an accounting and discovery from two of their brothers, alleging that one of the brothers, Lawrence Stein, as co-trustee with the appellant Ethel Gold under the will of their father, V. A. Stein, had operated the trust property, a plantation in Mississippi, for his own benefit and had commingled the profits thereof with his own funds. The appellees denied that a trust existed, or that Lawrence Stein ever qualified as trustee under the will of his father. They contended that Lawrence Stein had an agreement with all of the interested parties that he would rent the property from them on a year to year basis; and that, as a matter of law, a trust was not created under his father's will, since their father and mother owned the property as joint-tenants.

The court below held as a matter of law that no trust existed under the will, since the property passed to Sarah Stein, as joint-tenant, upon the death of her husband. The court found as a fact that Lawrence Stein had merely rented the property; and judgment was entered for the defendants.

All the parties involved in this controversy were the children of V. A. and Sarah Stein, who died in 1933 and 1935, respectively. In 1904, they acquired title to a plantation known as "Little Hope" by a deed in which it was stated that the land was conveyed to V. A. Stein and Sarah Stein, "as joint-tenants and not tenants in common." During the last three years of his father's life, 1931-1933, Lawrence claims to have rented the plantation from his father under a verbal lease for $3,000 a year, his mother having nothing to do with the transaction. At one time during his lifetime, the father individually executed a deed of trust covering the farm implements and the livestock and crops grown on the plantation. From 1928 through 1950, the property was assessed on the land rolls as the "V. A. Stein Property."

By a will dated November 26, 1930, V. A. Stein undertook to devise to his wife a life estate in all of his property, with the remainder in trust for his children and two grandchildren, naming his daughter Ethel and son Lawrence as co-trustees of the estate. Soon after making the will, V. A. made a codicil in which he bequeathed all of his personal property to Lawrence. The will was probated, and Ethel and Lawrence qualified as executors. Lawrence did not question the will or ask to be relieved as trustee, but he testified that he continued to rent the estate from his mother on the same basis as during his father's lifetime, allowing her to obtain money as she needed it for doctor's bills, taxes, etc.

From the death of the father to the time of this suit, the insurance which was taken out on the property was written in the name of "Lawrence Stein, individually, and the estate of V. A. Stein." Lawrence accepted benefits under the will, claiming the personal property of the estate as a legacy bequeathed to him in the codicil; and recognizing that, at the time of his father's death, everything went to his mother for her lifetime. He also admitted that he recognized the trust in the will. He independently executed an...