Currier v. Johnson

• Decision Date: 08 June 1903
• Parties: CURRIER et al. v. JOHNSON et al. [*]
• Court: Colorado Court of Appeals

73 P. 882

19 Colo.App. 94

CURRIER et al. v. JOHNSON et al. ^[*]

Court of Appeals of Colorado

June 8, 1903

Error to District Court, Weld County.

Proceedings by Virginia W. Currier and others against Bruce F. Johnson and others for an accounting and construction of a will and other relief. Judgment for defendants, and plaintiffs bring error. Reversed.

C.D Todd, H.E. Churchill, Delph E. Carpenter, and Dines &amp Whitted, for plaintiffs in error.

Esteb &amp Wolff, for defendant in error Horace G. Clark.

H.N Haynes, for defendant in error Bruce F. Johnson.

James W. McCreary, for defendants in error James F. Tuckerman and William Mayher.

GUNTER J.

Upon the facts stated in the complaint the court ruled that it had no jurisdiction of the subject of the action. Such facts, so far as material to this ruling, are: July 25, 1892, Warren Currier died, leaving surviving his widow, Lydia M., his sons, George W. and Henry F., their wives, Ella B. and Lucy P., and grandchildren Virginia W., Lydia G., Edward W., Mary B., Farnsworth, and Elizabeth L. (children of George W.), and Louise W., Hazel P., Warren, and Julia K. (children of Henry F.), all of whom were living at the time of the institution of this action, at which time all of the grandchildren were minors, except three.

The deceased left a will and an estate of large value. This will provides: (1) For the payment of debts. (2) Devises certain personal property to the wife of deceased. (3) Gives to George W. Currier the use of the Greeley homestead on certain conditions. (4) Gives to Henry F. Currier the use, rent free, of certain real estate. (5) Provides for the adjustment of certain advancements made by deceased to the above sons. "(6) I give, devise and bequeath all the rest and residue of my estate, real, personal or mixed and wherever situate, to my said executors, to-wit: Bruce F. Johnson and Charles H. Wheeler, both of said Greeley, and to the survivor of them and their successors, to hold, manage and dispose of in trust for the uses and purposes following, to-wit: (a) Two thousand dollars of the net annual income therefrom to be collected by my said executors and paid over annually as an annuity to my said wife in quarter-yearly installments of five hundred dollars each during her natural life, the same to be accepted by her in lieu of dower and in full of all claims upon my estate not hereinbefore specified and provided for, all such payments to be made upon her personal receipt and not otherwise. (b) All the rest and residue of the total net annual profit and income that shall be derived from my said estate shall be collected by my said executors and by them annually paid over in equal parts to my two sons (they being my only surviving children) to-wit: said George W. Currier, and Henry F. Currier, during their natural lives, one-half thereof to each, and upon the separate personal receipt of each. In case of the death of either, the share of the other (he still surviving) shall continue and be paid over to him during his natural life. But the share of the one deceased shall from the time of his death be distributed and paid over to his widow, if then surviving, and to his then surviving children in equal parts to each, share and share alike; and such payments shall continue during the natural life of my son then surviving. The annual payments aforesaid shall be made in quarter-yearly installments and upon the separate personal receipt of the party entitled to receive the same and not otherwise. (c) If either of my said sons shall die without leaving issue surviving him the share of the annual income from said estate of such deceased son shall go to and vest in and be paid over to his surviving brother in quarter-yearly installments as aforesaid. If either of my said sons shall die leaving issue surviving him such issue shall take the part and share of his or her father, and where there are several surviving children they shall share and share alike in said net annual income. (d) It is my will that my said executors shall carefully collect and take care of said estate, and that they shall by proper sale or sales thereof convert such parts of it into cash as they shall judge to be for the best interest of my said wife and sons and the other beneficiaries herein named or described; and to that end I give to said executors and to the survivor of them and to their successors full power and authority to sell and convey said estate or any part thereof in fee simple and to make all proper deeds and other conveyances thereof, reinvesting the proceeds of such sale or sales in such productive securities or improved productive real estate as they may judge to be safe and remunerative having primary reference to the safety thereof. I enjoin upon said executors to distribute fully and carefully the total net annual income and increment of my estate to the persons and in the time and manner here provided and so as to avoid the accumulation in their hands of property and assets in excess of the total value of the property and assets that shall originally come to them under this will." "(8) Upon the death of both of my said sons, said George and Henry, said executors and the survivor of them and their successors are hereby empowered and directed to convey by proper deeds or other conveyances and in fee simple any and all estate, real, or personal or mixed which shall then remain in their hands or subject to their control under the provisions hereof to the heirs at law of my said George and Henry respectively, the children of each taking one-half of said estate per stirpes in absolute ownership and in exclusion of all other persons; and I hereby give and bequeath to said children all the said estate so then remaining in the hands of my said executors, each family of children an inheritable estate therein in fee as the heirs at law of my said sons respectively, and taking the same per stirpes and not per capita, each family of children taking one-half thereof. (9) *** (10) It is my desire that said Board of Executors shall be continued until the purposes of this will are fully accomplished and the trusts herein created are fully executed; and it is my will that any vacancy arising in said Board shall, on the application of any beneficiary herein named, be filled by the appointment of the County Court of said Weld County; meaning the court in said county which shall have at the time jurisdiction of probate matters in said Weld County. ***"

The will was probated September 6, 1892, and the executors named, Bruce F. Johnson and Charles H. Wheeler, qualified as such September 14th, same year. They acted as executors from that date until May 23, 1893, when Charles H. Wheeler tendered his resignation as executor, which was accepted by the county court, and an order made purporting to appoint Horace G. Clark as his successor. Johnson and Clark continued to act as executors of the estate until January, 1897, when they tendered their resignations as such, and the court made an order (January 30, 1987) appointing James Tuckerman and William Mayher as their successors, which last-named appointees have continued to act as such since the date of their appointment until the institution of this suit, in November, 1899.

This action was by the grandchildren of Warren Currier--residuary legatees of the principal estate, which was required to be kept intact for them--against said Johnson, Wheeler, Clark Tuckerman, Mayher, said sons, George W. and Henry F., their wives, and the said widow of Warren Currier, and was to have an accounting for losses sustained through the principal estate being depleted by the fraudulent and illegal acts of its trustees; to have the will construed, and the question settled as to where the legal title of the estate now rests; and for other and general relief. Johnson and Wheeler depleted the principal estate (as it is alleged) during their administration in the sum of $2,796.72, such depletion being due almost wholly to their knowingly and illegally paying out the principal of the estate as the income thereof. This was in violation of their duties as trustees, and to the prejudice, in said amount, of these plaintiffs in error, the residuary legatees of the principal estate. Wheeler's resignation was accepted and Clark appointed without the knowledge or consent of any one of the beneficiaries of said estate. During the administration of Johnson and Clark the principal estate was depleted by them knowingly and illegally (as it is alleged) to the extent of $14,620.32. The facts constituting such depletion are set out in detail. For example, they purchased of George W. Currier a certain interest in real estate, paying him $1,500 therefor, which interest had no value, and said executors knew that it had none, but purchased the same fraudulently and illegally for the purpose of enabling Executor Johnson to collect $500 due to him individually of George W. Currier; that they purchased certain improved lands of George W. Currier at a price which they knew to be in excess of their value in the amount of $1,800; that they bought realty in the state of Florida to the extent of $10,000 at a price largely in excess of what they knew to be its value; all of which purchases were made out of the principal of the estate and to the prejudice of these plaintiffs. During the administration of Johnson and Clark lands were conveyed by them in behalf of the estate, and lands were conveyed to them for the benefit of the principal estate. Plaintiffs in error contend that the county court had no power to appoint Clark trustee of the estate, and, if so, he was without capacity to convey lands of the estate, or to take title to lands intended to be conveyed to it. They ask for a construction of...