Boice v. Mallers

• Decision Date: 01 February 1950
• Docket Number: No. 17884,17884
• Citation: 96 N.E.2d 342,121 Ind.App. 210
• Parties: BOICE v. MALLERS et al.
• Court: Indiana Appellate Court

Page 342

96 N.E.2d 342

121 Ind.App. 210

BOICE v. MALLERS et al.

No. 17884.

Appellate Court of Indiana, in Banc.

Feb. 1, 1950.

Brubaker, Rockhill & Lee, Warsaw, for appellant.

Ezra W. Graham, Warsaw, for Nick Mallers. Jesse E. Eschbach, Warsaw, of counsel.

Donald Vanderveer, Milford, for Clifford C. DuBois, trustee.

Widaman & Widaman, Warsaw, for Widaman-McDonald Co.

BOWEN, Presiding Judge.

This is an appeal from a judgment in the probate jurisdiction of the Kosciusko Circuit Court setting aside the sale of certain stock by the trustee under the will of one Angus C. McDonald, deceased.

Issues were formed by a petition filed by one Nick Mallers who attacked the sale of certain stock to the appellant. Such petition alleged that the appellee Mallers was ready and willing to buy the stock; at a price exceeding the $35,000 appellant had allegedly paid for the stock; and that he was willing to pay ten per cent more than the $35,000 for the stock and tendered a check for $3,500. Such petition attacked the title of the trustee to such stock, and asked that the sale be set aside and a new sale ordered.

The will of decedent provided that, after certain bequests, the residue of his property and estate, both real and personal, was bequeathed and devised to one Clifford C. DuBois, as trustee, who by the terms of such will, Item 5(a), was given broad powers to invest and reinvest any and all funds coming into his hands, as well as to alter the form of any investment; to lease, sell, dispose of, convey and assign any real or personal property belonging to the trust estate, or any reinvestment thereof, at such times, upon such terms and for such prices as might be advantageous to the trust estate. The will further provided that the enumeration of powers therein shall not be taken or construed to limit or restrict the general authority therein granted or given. From the proceeds of such trust, the trustee was directed to make certain beneficial payments out of the income of the trust estate to decedent's wife and other persons, and provided that the residue of such net income shall exist as the 'McDonald Memorial Fund' to be loaned to worthy, needy, students at the rate of three per cent interest per annum, to enable such students to procure either a high school, college, or professional education, with certain conditions as to the loans. The same Clifford C. DuBois was named executor of such will by a codicil executed shortly before the death of the testator, who authorized and empowered the executor thereof in the following language: 'I hereby authorize and empower my executor, Clifford C. DuBois, in his exclusive and absolute discretion, to sell and dispose of and convert into cash such items, portions or species of my property and estate, both real and personal, of any kind or character or wheresoever situated, as he may choose and select, as may be required for the payment of the debts and liabilities of and claims against my estate, legacies, taxes, or for such other purposes and objects as he may deem necessary or desirable in the administration of my estate and the execution of my will, and for such purpose hereby authorize and empower him to make and execute any and all necessary deeds of conveyance or other instruments in connection therewith.'

Following the death of the decedent, Clifford C. DuBois was appointed both executor and trustee, qualified in both capacities and is still acting as such. He qualified as executor on April 28, 1944, and qualified as trustee on February 15, 1945. Such executor filed an inventory showing among the assets of such estate one hundred and fifty shares of the capital stock of the Widaman-McDonald Company which owned a theatre building in Warsaw known as the Centennial Theatre. During the course of administration and prior to the sale in question, DuBois, as executor, applied for and secured the authority of the Probate Court for a contingent partial distribution of assets to the trustee, but such order of distribution did not include the stock in question.

Clifford C. DuBois, as trustee, filed a petition for an order authorizing the sale of the stock in question. In such petition, he alleges that such stock came into his hands as executor; that the outstanding shares of certificates of such stock were surrendered to the corporation for reissuing of new certificates evidencing the stock; that in issuing the new stock certificates instead of the same having been issued to said executor, whose duty in winding up said decedent's estate, would be to transfer and assign the same to himself as trustee under the will of said decedent, the same was issued directly to this trustee. The petition recited that 'this report and the account of said transaction was made for the purpose of evidencing the disposition of such assets in said estate.' Such trustee further alleged that under the will he was authorized to sell and dispose of the assets thereof and change the form of investment; that such stock is of the approximate value of $35,000 and that such trustee has been offered said sum therefor. In his judgment, the amount so offered for it is a good offer and a good price therefor. He asked that such stock should be ordered sold and converted into cash, and in the prayer of such petition he prayed an order authorizing the sale of such stock now held by him as such trustee.

Such petition was submitted to the court for hearing, and the record recited that the court after having examined the petition, and having heard the evidence, and being duly advised in the premises, found that the allegations in the petition were true; that the prayer thereof ought to be granted; that in the interest of his trust estate, the trustee should be authorized to sell and convert into cash the one hundred and fifty shares of the common capital stock in the Widaman-McDonald Company and the prayer of the petition was granted, and such stock was ordered sold by such trustee under the will of Angus C. McDonald, deceased, and such trustee was authorized to transfer and assign any and all certificates evidencing the same. Such order for the sale of such stock by the trustee was made in the April term, 1948, of such court, on May 8, 1948...