Gavin v. Miller

• Decision Date: 26 April 1944
• Docket Number: 27957.
• Citation: 54 N.E.2d 277,222 Ind. 459
• Parties: GAVIN v. MILLER et al.
• Court: Indiana Supreme Court

54 N.E.2d 277

222 Ind. 459

GAVIN v. MILLER et al.

No. 27957.

Supreme Court of Indiana

April 26, 1944

Appeal from Probate Court, Marion County; Smiley N Chambers, judge.

Ralph K. Kane, Gideon W. Blain, and Robert Hollowell, all of Indianapolis, for appellant.

Paul T. Rochford, Merlin M. Dunbar, and Lucien L. Dunbar, all of Indianapolis, for appellees.

SHAKE Judge.

William H. Oakes died testate a resident of Marion County, Indiana on February 24, 1925. The appellant was named as executor of the will and promptly qualified as such. The last record made by the Probate Court of Marion County in the administration of said estate, on December 26 1931, was as follows: 'It is further adjudged and decreed by the court that this report be approved except as to the investments and that said executor upon filing the receipt of said trustee for the aforesaid property, be released and discharged as executor and said estate be then fully administered upon and finally settled and determined.'

Immediately thereafter the appellant qualified as trustee under the will of said decedent and took over the administration of the trust created thereby. The will directed that said trustee should 'have full power to sell * * * any stock, bonds or personal property, at any time held by him as part of the assets of said trust, at such times and on such terms as he may deem to the advantage of this trust, with the approval of the court having probate jurisdiction in Marion County, Indiana.' It was further directed that the trustee should have authority 'to invest all money that may come into his hands as part of said trust estate from any source whatever, by loaning the same on first mortgage on real estate, or by investments in securities, real estate or stocks suitable for the investment of trust funds, and said trustee may alter and change any such investments as in his judgment may be to the best interest of such trust, subject only to the approval of the court of probate jurisdiction in Marion County, Indiana.'

Subsequently, the appellant made three reports relating to the administration of his trust to the Probate Court. The last, denominated as amended and supplemental report, was filed on March 9, 1940. To this the appellees, Alice Ford Miller, Charles S. Miller, Ella Oakes and Mary Goode, filed exceptions. During the trial the appellant resigned and a successor trustee was appointed. In accepting his resignation the court ordered the appellant to turn over to his successor all personal property belonging to the trust, which the appellant did. The court thereafter entered a personal judgment against the appellant for $153,443.95, which included $20,000 allowed counsel for the appellees for prosecuting their exceptions. The appellant's motion for a new trial was overruled and this appeal followed.

A motion to dismiss was denied while this case was pending in the Appellate Court, and we have been asked to review that ruling. The motion was upon the theory that the appeal should have been taken under the special statute relating to the review of matters growing out of the settlement of decedents' estates, rather than under the procedure pertaining to civil appeals, generally. Appeals under the Probate Code are restricted to the review of decisions 'growing out of any matter connected with a decedent's estate.' § 6-2001, Burns' 1933, § 3277, Baldwin's 1934. While this action arose upon exceptions to the report of a testamentary trustee, the judgment was personal and appropriate to a proceeding upon the trustee's bond. It has been held that a personal judgment against an administrator on his bond is not one connected with the administration of a decedent's estate under the above statute. Rogers v. State, 1901, 26 Ind.App. 144, 59 N.E. 334; Koons, Adm'r v. Mellett, 1889, 121 Ind. 585, 23 N.E. 95, 7 L.R.A. 231. We think the same must be said of a personal judgment against a testamentary trustee of the character here involved.

Where, as here, no special findings of fact or conclusions of law were requested, but the court, nevertheless, made specific general findings upon which its judgment was predicated, it is proper to look to the findings to determine what matters were actually adjudicated. We may, indeed, look to the whole record to ascertain the meaning and effect of the judgment. State ex rel. Booth v. Beck Jewelry Enterprises, 1942, 220 Ind. 276, 41 N.E.2d 622, 141 A.L.R. 876.

It appears from the record that when the appellant qualified as trustee there were certain securities in the trust estate which had been acquired by the testator in his lifetime, and that the trustee continued to hold these in his portfolio until he resigned. During the intervening period of some nine years the market value of these securities fluctuated frequently and considerably. Without any proof that a prudent person, in the exercise of reasonable care, skill, and diligence, would have sold said securities at any particular time, the court considered the matter retrospectively and concluded on the sole basis of their market history that the appellant was negligent in having failed to dispose of these holdings on a previous day certain, when that could have been accomplished to the financial advantage of the trust. This was error. The question as to whether a trustee has exercised due care and sound discretion in holding or selling investments must be determined from a showing of the situation existing as of the time under inquiry, and not in...