Caulkins v. Memphis Gas-Light Co.

• Decision Date: 26 April 1887
• Citation: 4 S.W. 287,85 Tenn. 683
• Parties: CAULKINS and others v. MEMPHIS GAS-LIGHT CO. and others.
• Court: Tennessee Supreme Court

4 S.W. 287

85 Tenn. 683

CAULKINS and others v. MEMPHIS GAS-LIGHT CO. and others.

Supreme Court of Tennessee.

April 26, 1887

Appeal from chancery court, Shelby county.

Finlay & Peters and Humes & Paston, for complainants in error.

Craft & Cooper, for defendants in error.

FOLKES J.

This suit, as it is now presented, involves the question as to the right of complainants to recover from the defendants gas-light company and others, the value of $7,000 of stock in said company, which it is claimed the company has negligently and wrongfully aided in the transfer of.

The facts necessary to a proper understanding of the case are as follows:

Mrs Margaret A. Riggs, who was then a resident of Pennsylvania died in 1866, leaving a will, which was duly probated. After certain specific bequests, there follows the seventh clause in which she provides that "all the rest, residue, and remainder of my estate, real and personal, of every nature and description, which I now own, or in which I may have any interest at the time of my death, in law or in equity, I give, devise, and bequeath to Albert C. Wurzback, of Memphis, Tennessee, and Robert Gardner, of Charlestown,. Mass., in trust, nevertheless, for the uses and purposes declared in this will." By item 11 she directs her executors (who are said Albert C. Wurzback and Robert Gardner) "to pay, subject to the foregoing requests and annuities, two-thirds of the net income of my estate to my daughter Julia A. Wurzback, (now the complainant Julia A. Caulkins,) in equal quarterly payments, during the term of her natural life, for her own support, use, and free from the control of her husband; and the remaining one-third thereof to the said Albert C. Wurzback during the term of his natural life." By clauses 12, 13, 14, and 15 it is provided that, if Wurzback should survive the daughter and her issue, he should have the entire estate; but, should Julia A. or her issue survive him, then he should only be entitled to receive one-third of the net income of the estate during his natural life, and the estate itself to go Julia A. and her issue at his death, the said Julia A. receiving the net income of the entire estate during her natural life, the whole estate to go to her issue at her death.

A. C. Wurzback alone qualified under this will, and letters testamentary were issued to him in December, 1868, by the orphans' court of Erie county, Pennsylvania. He never qualified, either as executor or trustee, in the state of Tennessee.

On February 26, 1872, the will of Mrs. Riggs was probated in Shelby county, Tennessee, and E. M. Hearn was appointed by the probate court of said county administrator with the will annexed of the estate in Tennessee. He was also appointed by the same court, August 6, 1872, trustee to carry out said will. At the time of her death, Mrs. Riggs owned 160 shares of the capital stock, of $100 each, aggregating $16,000, in the Memphis Gas-Light Company, a corporation chartered by the state of Tennessee, and having its situs in Memphis, Tennessee. The gas company paid dividends to Wurzback until Hearn qualified as administrator, when Wurzback demanded that the company should continue to pay him dividends, and issue new stock to him in lieu of that which he then held, standing on the books in the name of Mrs. Margaret A. Riggs. Hearn, having collected dividends on the stock for awhile, demanded that it should be transferred to him, as administrator, etc. The company refused to issue stock to either of them, after an examination of the will.

On March 13, 1872, Julia A. Caulkins and husband filed a bill in the chancery court of Shelby county against Wurzback, Hearn, and the gas-light company, alleging Wurzback's waste of the estate; his incompetency; dissipated habits; his attempts and efforts to get possession of the said stock, and to convert it to his own use; and praying for the appointment of a trustee in Tennessee to take charge of the stock, and for an injunction prohibiting the gas-light company from issuing said stock to Wurzback, etc., which said injunction was duly granted and served on said company. At the time of filing this bill, litigation was pending between Mrs. Caulkins and Wurzback in the orphans' court of Erie county, Pennsylvania, which was soon afterwards settled by an agreement and decree therein, by which Wurzback was to assign his trusteeship of Julia A. Caulkins under the will of Mrs. Riggs; "and agrees to transfer to David Olier, of Girard, or whomsoever the orphans' court of Erie county may appoint her trustee, $9,000 of the stock of the Memphis Gas Company; also to transfer and deliver to said trustee ten thousand dollars of the bonds of the United States, and certain real estate in Omaha, Nebraska, valued at fifteen thousand dollars; the said Wurzback to retain the house and lot in Girard aforesaid, valued at $10,000, and retain $7,000 of the capital stock of the gas company aforesaid. * * *" He, the said Wurzback is to retain the trusteeship of the property retained by him, and reserves all of his rights as devisee and legatee of said will of said Margaret Riggs. The said Julia A. Caulkins relieves the said Wurzback from all claims as her said trustee, or as executor or guardian, up to this date. The said Wurzback is to have no further or other claim on the income of the said estate than the house and lot in Girard, and the $7,000 of Memphis gas stock, during the life of the said Julia A. Caulkins.

And on the same day a decree was entered on said agreement, in said orphans' court, reciting that "the parties having agreed upon terms of settlement and partition of the income of the estate, which the court, after due consideration, decrees to be just and equitable, and not repugnant to the will of the testatrix, nor the law, and having filed his resignation of his trust as testamentary trustee of the income and estate of the said Julia A. Caulkins, the court accepts his said resignation, and appoints David Olier, of Girard, in said county, trustee of that portion of said estate and income belonging, by the terms of said settlement, to Julia A. Caulkins; and the said A. C. Wurzback to remain trustee of that portion of the estate given to him by the terms of said agreement; and that the said agreement filed as aforesaid shall constitute a part of this decree; and that the same, and every portion thereof, shall be specifically performed, and carried out according to its true intent and meaning."

We have been thus elaborate in the quotations from the agreement and decree, for the reason that the same, together with other parts of the record from the orphans' court of Erie county, Pennsylvania, were brought to the knowledge of the defendant company, by being filed on the sixth day of December, 1872, in the chancery court of Shelby county, in the said cause therein pending, of Caulkins v. Wurzback, and made the basis of the decree, which is now set up by the gas company as a conclusive answer to the question of its liability to the complainants in this suit.

This decree of said chancery court of Shelby county is as follows: "It appearing that all matters in dispute between the complainants Caulkins and wife and defendant Wurzback have been settled by agreement of the parties, and that under said agreement defendant Wurzback has resigned as trustee of complainant Julia A. Caulkins, and David Olier, of Erie county, Pa., has been appointed by the orphans' court of said county, Pa., trustee for said Julia in his place and stead. It further appears by their agreement, confirmed by the decree of said Pennsylvania court, all the assets of the estate of Margaret A. Riggs, dec'd, in the hands of said Wurzback, (who is her executor duly appointed and qualified under the laws of Pa., where she resided at the time of her death,) have been divided, or agreed to be divided, between said Julia A. Caulkins and said A. C. Wurzback, according to the directions of the will of said Margaret A. Riggs; that among other assets there came to the hands of said Wurzback, in the state of Pennsylvania, certificates for sixteen thousand dollars of stock in the Memphis Gas-Light Company, which, by the agreement and settlement between the parties aforesaid, is to be divided, and nine thousand dollars of it held by said Olier as trustee for said Julia A. Caulkins, and the remaining seven thousand dollars to be held by said Wurzback in his own right, and for his own benefit, but the shares of both to be held according to the provisions of the will of said Margaret A. Riggs, dec'd. * * * On motion, therefore, the attachment herein is discharged, and the injunction dissolved, and decree modified, so as to permit said Wurzback, as Pennsylvania executor, to surrender to the Memphis Gas-Light Company said certificates of stock, and take out new certificates of stock so as to divide the same according to said agreement of division made by the parties; and said gas-light company is hereby directed and required, upon the surrender of the old certificates, to issue new ones, seven thousand dollars to said Wurzback in his own right, and nine thousand dollars in form, so that he can deliver or transfer the same to said Olier, as trustee for complainant, Julia A. Caulkins. It is further ordered that defendant E. M. Hearn pay the dividends collected by him, after paying costs, according to the agreement of the parties, two-thirds to said Olier, trustee, for complainant Julia A. Caulkins, and one-third to said Wurzback or his order. A copy of this order will be immediately served on the Memphis Gas-Light Company, and charged in the costs of the cause; and all other matters are reserved."

A copy of this decree was served upon the gas company, which copy was preserved, and is shown to be...