Farmers' Loan & Trust Co. of Columbia City v. Sec. Trust Co. of Indianapolis, 11580.
| Decision Date | 15 February 1923 |
| Docket Number | No. 11580.,11580. |
| Citation | 138 N.E. 97,79 Ind.App. 537 |
| Parties | FARMERS' LOAN & TRUST CO. OF COLUMBIA CITY v. SECURITY TRUST CO. OF INDIANAPOLIS. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Probate Court, Marion County; Mahlon E. Bush, Judge.
Action by the Farmers' Loan & Trust Company of Columbia City against the Security Trust Company of Indianapolis. Judgment for defendant, and plaintiff appeals. Reversed, with directions to render.
Gates & Gates, of Columbia City, and Fitzpatrick & Fitzpatrick, of Indianapolis, for appellant.
Frank Kimmel, of La Fayette, and D. A. Myers, of Indianapolis, for appellee.
Action by appellant against appellee to set aside and vacate the order of the court in appointing appellee as administrator with the will annexed of the estate of Mary E. Eicholtz, deceased, and in refusing to appoint appellant as executor; it being named as such in the will.
The errors assigned are that the court erred in stating its conclusions of law.
It appears by the special finding of facts that Mary E. Eicholtz died testate February 3, 1922, a resident of Marion county, Ind., where she had resided with her husband continuously for twenty years prior to her death; that her last will and testament was duly probated in the probate court of Marion county, Ind., February 13, 1922, upon the evidence of H. A. Beeson, one of the subscribing witnesses.
Items 1 to 18, inclusive, dispose of the estate to the respective legatees named in such items. By item 19 the testatrix, after declaring that her permanent residence was at the time in Columbia City, Ind., and that a large portion of her estate was situated in Whitley county, directed that her will should be probated, in that county, that letters executory should issue from the circuit court therein, and that the Farmers' Loan & Trust Company of Columbia City, Ind., appellant herein, be appointed as executor.
By item 20 the testatrix named appellant as executor of her said last will and testament, and by item 21 appointed Benton E. Gates, attorney for the settlement of her esstate. George W. Eicholtz, widower of said testatrix, and other devisees and legatees under said will, waived their rights to appointment to administer the estate, and requested the appointment of appellee trust company as administrator with the will annexed.
Said H. A. Beeson was present and gave testimony to carry the will to probate, but stated that he was appearing only in his individual capacity as a subscribing witness, and not as a representative of appellant. At the time he was an officer holding the office of secretary and a director of appellant company, and was such officer at the time that he witnessed the will. Benton E. Gates was at all times here involved the president and largest stockholder of appellant trust company, which company was duly incorporated and by the laws of the state qualified to act as executor or administrator of estates, and appellee trust company was also duly qualified so to act. On said February 13, 1922, at the time of the probate of such will, the probate court heard evidence and statements touching the propriety of appointing appellant trust company as executor, and after taking the matter under advisement, on February 16, 1922, appointed appellee trust company as administrator with the will annexed. Appellant trust company never at any time filed, offered to file, or authorized the making or filing of its renunciation in writing of its right to be appointed as such executor, or its right to file application in said court for such appointment. No summons or notice to appellant company was given at said hearing, nor of the appointment, and said appellant company was not represented or heard as to its qualifications to serve as such executor at any time prior to the appointment of appellee trust company, and it had no information except such as its secretary and director H. A. Beeson obtained individually when present in the capacity of a witness to prove the execution of the will. On February 23, 1922, appellant trust company authorized its president to ascertain the facts and take such steps as might be necessary to procure its appointment as such executor. On February 24, 1922, appellant company filed in said probate court its petition for the revocation of said letters of administration with the will annexed issued to appellee trust company and its application for its appointment as executor of said will, and at said time tendered and filed its qualification as such executor and its petition, application, and qualification ever since and now are a part of the records of the estate. At the time of the execution of said will, the testatrix was the owner in her own right in Whitley county, Ind., of a 440-acre farm, and of 40 acres and 20 acres immediately adjoining the city of Columbia City, and of two business rooms on one of the principal corners of said city, and numerous residences therein. At the time of the execution of her said will she had a safety box with her name thereon in the possession of appellant company, containing moneys, notes, and other papers belonging to her, and at that time and until her death she owned 10 shares of stock in such company. Clinton Wilcox, the other subscribing witness to the will, was also a stockholder and officer in said appellant trust company. Ill feeling and hatred existed at the time between the said George Eicholtz, widower of testatrix, and said Benton E. Gates, the president of appellant trust company, which arose after the execution of the will, and the appointment therein of appellant company as executor, which ill feeling is such as to make them hostile enemies; the devisees and legatees under the will side with the widower in his hostility toward said Gates.
On these findings of fact the court stated its conclusions of law that the letters of administration with the will annexed of appellee trust company should not be revoked, and that the application of appellant trust company for letters testamentary should be denied, upon which conclusions judgment was rendered in favor of appellee, from which judgment appellant prosecutes this appeal.
The substantial question in this case, as appears from the foregoing, is whether or not it is the duty of a probate court that under such circumstances has made an appointment of an administrator with the will annexed, there being no renunciation of the trust by the executor named, to set aside such appointment upon the petition of the executor named in the will so to do, such petition being filed, and application made within 20 days after the probate of the will of the deceased. In this case it is unquestioned that appellant's petition and application was filed in time, under the statute.
[1] Section 2737, Burns' R. S. 1914, provides as follows:
“Whenever any will shall have been duly admitted to probate, the clerk of the circuit court in which the same shall have been probated shall issue letters testamentary thereon to the person or persons therein named as executors who are competent by law to serve as such, and who shall appear and qualify. No person shall be deemed competent to serve as an executor who at the time of application for letters shall, upon proof made before such court or clerk, be shown to be-
First. Under the age of twenty-one years.
Second. To have been convicted of a felony.
Third. Who shall be adjudged by said court or clerk incompetent to discharge the duties of an executor by reason of improvidence, habitual drunkenness, or other incapacity.”
That the appointment of the party named in the will is mandatory is evidenced from the fact that the statute makes it the duty of the clerk of the court to issue letters testamentary, without any authority from the court so to do. It will be observed that the statute is specific in its exclusion of those who have no right of appointment. However, it is expressly found that each of the parties litigant was at the time qualified and has ever since so continued.
No Indiana authority directly in point is cited, either by appellant or appellee, nor do we find any, though in Hayes v. Hayes, 75 Ind. 395, where there had been a reversal on appeal of a judgment holding a will invalid (see Hayes v. Burkan, 67 Ind. 359), the court says:
The question in that case, however, involved the construction of section 7 of the act for the settlement of decedents' estates, R. S. 1876, p. 485, which was substantially the same as section 2742, R. S. 1914, and the court held...
To continue reading
Request your trial
- Farmers' Loan and Trust Company of Columbia City v. Security Trust Company of Indianapolis
-
State ex rel. Lauridsen v. Superior Court for King County
... ... should die or be unable to complete his trust, then ... the relators herein should act as ... also, to the same effect, Farmers' Loan & Trust Co ... v. Security Trust ... ...
-
In re Stahl's Estate
... ... FIRST NAT. BANK & TRUST CO. OF LA PORTE et al. v. SMITH et al. No ... Stahl, ... deceased. Farmers', etc., Trust Co. v. Security Trust ... Co., ... ...