Cooley v. Kelley

• Decision Date: 08 December 1911
• Docket Number: 7,761
• Parties: COOLEY v. KELLEY
• Court: Indiana Appellate Court

96 N.E. 638

52 Ind.App. 687

COOLEY v. KELLEY

No. 7,761

Court of Appeals of Indiana

December 8, 1911

Rehearing denied May 31, 1912, Reported at: 52 Ind.App. 687 at 701. Transfer denied March 6, 1913.

From Vigo Circuit Court; Joshua Jump, Special Judge.

Action by Winifred Harper Cooley against Frank A. Kelley individually, and as executor of the last will of Thomas W Harper, deceased. From a judgment for defendant, the plaintiff appeals.

Affirmed.

C. A Royse, for appellant.

Frank A. Kelley and Foley, Royse & O'Mara, for appellee.

OPINION

ADAMS, J.

This action was brought by appellant against appellee individually, and as executor of the last will of Thomas W. Harper, to establish a trust in certain personal property held by appellee, and to follow and recover the trust fund. The question presented by the record being essentially one of law, it is necessary, for a proper understanding of the same, to set out the undisputed facts, as they appear in the amended complaint and the third paragraph of answer.

The complaint shows that appellant is a daughter and only child of Thomas W. Harper, and a grand-daughter of William H. Harper, who died testate at Lima, Ohio, on April --, 1901, leaving surviving him four children, viz: William H. Harper, Jr., Thomas W. Harper (father of appellant), Vinnie Annat and Mary Syfers. The will of William H. Harper was duly proved in the Probate Court of Allen County, Ohio, on April 24, 1901. By its terms the will provided for the payment of the testator's debts, and made certain specific bequests. The balance of his property was devised and bequeathed to his four children above named, share and share alike, subject to the provision that all his real estate be appraised and sold, providing the manner in which it should be sold, and distributed according to the terms of item six of said will, which is as follows:

"I direct that the share of each of my children in my personal property and the proceeds of my real estate be paid to them in money or kind as soon as possible under the provisions of this will, except that one half of the share of my son Thomas W. Harper in the property described in items four and five hereof remain in the hands of my executor and my son-in-laws, R. K. Syfers and William Annat, whom I hereby appoint trustees for that purpose, until the death of my son, Thomas W. Harper. Said trustees to invest said sum and pay to my said son Thomas, yearly the income therefor. But i direct that if at any time in the opinion of my said trustees it would be for the best interests of my said son Thomas to pay him the whole or a part of said sum, they are hereby empowered to do so. If at the death of my said son Thomas, any part of said trust remain in the hands of my said trustees, they shall pay the same to any child or children of said Thomas surviving him, or to their legal representatives; if my said son Thomas at his decease leave no surviving child or grand-child, such remaining sum shall be paid to my surviving children or their legal representatives, share and share alike."

William H. Harper, Jr., was named as executor of the will, and after qualifying and making final settlement was duly discharged.

The three trustees named in item six received as a trust, for the purpose set out in said item, the sum of $ 7,230.09, invested the same, and paid the income thereof from time to time to Thomas W. Harper. On January 15, 1908, Rufus K. Syfers, one of the trustees named, died, and thereafter William H. Harper, Jr., and William Annat, as surviving trustees, concluded that a termination of said trust would be for the best interests of said Thomas W. Harper. On February 8, 1908, the surviving trustees delivered to said Thomas W. Harper certain notes, mortgages and cash, aggregating in value the sum of $ 7,230.09, and received from said Thomas a receipt therefor. On March 4, 1908, Thomas W. Harper, being then a resident of the city of Terre Haute, Indiana, died, testate, and his will was duly proved in the Circuit Court of Vigo County, Indiana, and admitted to probate on March 10, 1908. By said will the testator devised and bequeathed all his property to Ella Harper, who was his second wife and childless. Thomas W. Harper failed to make any provision for his daughter, the appellant, but recited in his will that he made such disposition of his property, for the reason, among other reasons, that his daughter, Winifred Harper Cooley, might, in a certain contingency, receive a portion of the property left by the will of his father. The will of Thomas W. Harper was dated December 11, 1903, and long before the principal fund of the trust estate was delivered to him. By the will of said Thomas, appellee, Frank A. Kelley, was appointed executor of the same, qualified as such executor on March 10, and took possession of all the personal property and estate of said Thomas W. Harper.

A demurrer to the complaint was overruled, and appellee answered in three paragraphs. The first was in denial. The third paragraph included the averments of the second, and admitted the facts averred in the complaint, but alleged that after the death of Rufus K. Syfers, on January 15, 1908, the two surviving trustees continued to administer said trust, and on February 3, 1908, filed in the Probate Court of Allen County, Ohio, their report and petition, averring that, in their opinion, a termination of the trust created by the will of William H. Harper would be for the best interests of Thomas W. Harper, asking for an order to turn over to said Thomas the balance of the trust funds in their hands, and that on producing the receipt of said Thomas for the same they be discharged as such trustees, and said trust ended; that on the filing of said final report the probate court entered an order authorizing said trustees to turn over said trust estate to said Thomas W. Harper, and they did so in obedience to said order; that the court approved their final report, which showed that they had turned over said trust property, and released and discharged said trustees.

It is also averred in the third paragraph of answer that at the time the will of William H. Harper was executed, Thomas W. Harper was unmarried, and a man of intemperate habits, which was known to William H. Harper, and his purpose and intention was to preserve to his said son the benefit of a part of the property bequeathed to him; that prior to the time said trustees turned over the property to Thomas W. Harper, he had married, and was living in a quiet and respectable manner, and was able and competent to take charge of his own property at the time the same was turned over to him by the trustees; that on the death of Thomas W. Harper, the appellee, as executor of his will, took possession of the notes and securities in question as a part of the personal estate of said Thomas W. Harper. This paragraph of answer also sets out certain statutes and laws of the State of Ohio in force at and since the date of the probate of the will of William H. Harper.

A demurrer was sustained to the second paragraph of answer and overruled to the third. The cause was put at issue by a reply in denial to the third paragraph of answer, and submitted to the court for trial, which resulted in a finding for appellee.

Upon the hearing, appellant offered in evidence the third paragraph of appellee's answer, and by the testimony of appellee showed the amount of money, and the nature and amount of the securities held by him as executor. Appellee offered in evidence a transcript of the proceedings of the Probate Court of Allen County, Ohio, with reference to the trust in question, including the final report of the surviving trustees, the approval thereof by the court, and the discharge of the trustees. Appellee also offered in evidence the will of Thomas W. Harper, his marriage certificate, and certain sections of the Ohio statutes, relating to probate matters and the jurisdiction of the probate court. No other evidence was heard.

The finding of the court was in the form of a written opinion, which has been carried into the record on appeal. It is unnecessary to set out this opinion, for reasons which will hereinafter appear.

The errors assigned and relied upon for reversal are as follows: (1) Overruling the demurrer to the third paragraph of answer; (2) overruling the motion for a new trial; (3) overruling the motion for a venire de novo; (4) overruling the motion for judgment, notwithstanding the finding of the court; (5) overruling the motion to modify the judgment. The last three specifications of error present the same matters, and are preliminary to the important questions involved in this appeal.

It is urged by appellant that the complaint having been held good, and the written opinion of the court being based on the theory that the complaint was not good, this constitutes error. There is no merit in this contention. The ruling on demurrer is not binding on the court, and does not require subsequent rulings to be in harmony. Newman v. Perrill (1880), 73 Ind. 153, 156; Stewart v. Terre Haute, etc., R. Co. (1885), 103 Ind. 44, 47, 2 N.E. 208.

The record does not show any request for a special finding in this case, and under well-established rules the opinion of the court delivered in announcing its decision, although carried into the record on appeal, cannot be regarded as anything more than a general finding. Hinshaw v Security Trust Co. (1911), 48 Ind.App. 351, 93 N.E. 567, 569; Bass v. Citizens Trust Co. (1904), 32 Ind.App. 583, 584, 70 N.E. 400; Northcutt v. Buckles (1878), 60 Ind. 577, 579. The finding being a general one for appellee, who was defendant below, it follows that there was no error in overruling the motion for a venire de novo. This...