Cooley v. Kelley, No. 7,761.

Docket NºNo. 7,761.
Citation96 N.E. 638, 52 Ind.App. 687
Case DateDecember 08, 1911
CourtCourt of Appeals of Indiana

52 Ind.App. 687
96 N.E. 638

COOLEY
v.
KELLEY.

No. 7,761.1

Appellate Court of Indiana, Division No. 1.

Dec. 8, 1911.


Appeal from Circuit Court, Vigo County; Joshua Jump, Special Judge.

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

[96 N.E. 639]


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

ADAMS, J.

This action was brought by the appellant against the 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 the appellant is a daughter and only child of one Thomas W. Harper, and a granddaughter of William H. Harper, who died, testate, at Lima, Ohio, on the - day of 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 the 24th day of April, 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 6 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 said 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, there 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

[96 N.E. 640]

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 6 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; that on the 15th day of January, 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; that on the 8th day of February, 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; that on the 4th day of March, 1908, Thomas W. Harper, being then a resident of the city of Terre Haute, Ind., died testate, and his will was duly proved in the circuit court of Vigo county, Ind., and admitted to probate on the 10th day of March, 1908; that by said will the testator devised and bequeathed all his property to Ella Harper, who was his second wife, and childless; that Thomas W. Harper failed to make any provisions 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; that 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, the appellee, Frank A. Kelley, was appointed executor of the same, qualified as such executor on said 10th day of March, and took possession of all personal property and estate of said Thomas W. Harper.

A demurrer to the complaint was overruled, and the 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 the 3d day of February, 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 upon producing the receipt of said Thomas for the same that they be discharged as such trustees, and said trust ended; that upon filing their final report said probate court entered an order, authorizing said trustees to turn over said trust estate to said Thomas W. Harper, and that 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 upon 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 the appellee.

Upon the hearing, the appellant offered in evidence the third paragraph of appellee's answer, and by the testimony of the appellee showed the amount of money and the nature and amount of the securities held by him as executor. The 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: (1) Overruling the demurrer to the third paragraph of answer: (2) overruling the motion for a new...

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10 practice notes
  • Ackerman v. Fichter, No. 22,147.
    • United States
    • Indiana Supreme Court of Indiana
    • April 15, 1913
    ...They have the title of the res, the corpus, and its control, and therefore have powers coupled with an interest. Cooley v. Kelley (App.) 96 N. E. 638;Hadley v. Hadley, 147 Ind. 423, 46 N. E. 823;Rowe v. Beckett, 30 Ind. 154, 95 Am. Dec. 676. [3] It is also contended that the probate courts ......
  • Rosenberg v. Rosenberg, No. 19357
    • United States
    • Indiana Court of Appeals of Indiana
    • January 30, 1961
    ...222 Ind. 459, 464, 54 N.E.2d 277, as well as to the whole record. Gavin v. Miller, supra; Cooley v. Kelley, 1911, 52 Ind.App. 687, 693, 96 N.E. 638, 98 N.E. 653; Merchants National Bank & Trust Company, etc. v. Winston, Ind.App. 1959, 159 N.E.2d The parts of said finding which are of intere......
  • Merchants Nat. Bank & Trust Co. v. Winston, No. 18989
    • United States
    • Indiana Court of Appeals of Indiana
    • June 17, 1959
    ...opinion must be disregarded and the finding treated as a general one.' The same question arose in the case of Cooley v. Kelley, 1913, 52 Ind.App. 687, 693, 694, 96 N.E. 638, 641, 98 N.E. 653, wherein the court 'The record does not show any request for a special finding in this case, and und......
  • Cooley v. Kelley, 7,761
    • United States
    • Indiana Court of Appeals of Indiana
    • December 8, 1911
    ...96 N.E. 638 52 Ind.App. 687 COOLEY v. KELLEY No. 7,761Court of Appeals of IndianaDecember 8, 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......
  • Request a trial to view additional results
10 cases
  • Ackerman v. Fichter, No. 22,147.
    • United States
    • Indiana Supreme Court of Indiana
    • April 15, 1913
    ...They have the title of the res, the corpus, and its control, and therefore have powers coupled with an interest. Cooley v. Kelley (App.) 96 N. E. 638;Hadley v. Hadley, 147 Ind. 423, 46 N. E. 823;Rowe v. Beckett, 30 Ind. 154, 95 Am. Dec. 676. [3] It is also contended that the probate courts ......
  • Rosenberg v. Rosenberg, No. 19357
    • United States
    • Indiana Court of Appeals of Indiana
    • January 30, 1961
    ...222 Ind. 459, 464, 54 N.E.2d 277, as well as to the whole record. Gavin v. Miller, supra; Cooley v. Kelley, 1911, 52 Ind.App. 687, 693, 96 N.E. 638, 98 N.E. 653; Merchants National Bank & Trust Company, etc. v. Winston, Ind.App. 1959, 159 N.E.2d The parts of said finding which are of intere......
  • Merchants Nat. Bank & Trust Co. v. Winston, No. 18989
    • United States
    • Indiana Court of Appeals of Indiana
    • June 17, 1959
    ...opinion must be disregarded and the finding treated as a general one.' The same question arose in the case of Cooley v. Kelley, 1913, 52 Ind.App. 687, 693, 694, 96 N.E. 638, 641, 98 N.E. 653, wherein the court 'The record does not show any request for a special finding in this case, and und......
  • Cooley v. Kelley, 7,761
    • United States
    • Indiana Court of Appeals of Indiana
    • December 8, 1911
    ...96 N.E. 638 52 Ind.App. 687 COOLEY v. KELLEY No. 7,761Court of Appeals of IndianaDecember 8, 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......
  • Request a trial to view additional results

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