Gibson v. Gibson

• Decision Date: 26 May 1952
• Docket Number: No. 18209,18209
• Citation: 106 N.E.2d 102,122 Ind.App. 559
• Parties: GIBSON et al. v. GIBSON et al.
• Court: Indiana Appellate Court

Page 102

106 N.E.2d 102

122 Ind.App. 559

GIBSON et al. v. GIBSON et al.

No. 18209.

Appellate Court of Indiana, in Banc.

May 26, 1952.

Claude D. Carson, Plymouth, for appellant.

George F. Stevens, Plymouth, for Nellans, Travis & Travis.

D. L. McKesson, Plymouth, for State Exchange Bank of Culver.

CRUMPACKER, Judge.

This suit was instituted by Russell P. Gibson, the beneficiary of a trust created by the will of his father, the late William Gibson of Plymouth, Indiana. It was filed as an independent action, under the Declaratory Judgments Act of Indiana, on the civil side of the Marshall Circuit Court and charges a devastavit of the William Gibson estate through the mal-administration thereof by Lillian Gibson, the executrix, and the intermeddling of Coral Nellans and Faye Travis, mother and sisters respectively of the said Russell P. Gibson. Its purpose is to fix the liability of each of the appellees, except the State Exchange Bank of Culver, Indiana, for alleged conversion of the estate's assets for their own use and judgment against each in the amount so fixed and against the bondsmen of the executrix in the amount found due the estate from her. Shortly before this suit was commenced Lillian Gibson, the executrix, resigned her trust and the State Exchange Bank of Culver was appointed by the probate side of the Marshall Circuit Court as administrator de bonis non cum testamento annexo of said estate and was made a party defendant to answer to its interests as such. During the trial of the cause Lillian Gibson died intestate and no administrator of her estate was appointed to represent her in the litigation. However the plaintiff Gibson and the defendants Coral Nellans and Faye Travis, as sureties on her bond as executrix, stipulated that they would be bound by 'the adjudication of the court as to her interest in the estate in like manner as though an administrator had been appointed' and that her representation should be regarded as complete through the presence of all her heirs in court as parties litigant.

From the great volume of evidence in the record we have culled facts concerning which there seems to be no dispute and which may be summarized as follows: William Gibson, late of Plymouth, Indiana, died testate September 14, 1943. He left surviving, as his sole and only heirs at law, his widow Lillian Gibson and three children, Coral Nellans, Russell P. Gibson and Faye Travis, all adults. At the time of his death, his wife Lillian, his son Russell, his daughter Faye and his grandson Donald Travis, then 14 years of age and son of Faye, lived in the testator's residence in Plymouth as a common family. His son Russell was then working and paying board in the sum of $5 per week. His daughter Faye was also then employed and likewise paying board in the sum of $10 per week for herself and son Donald who was a pupil in the Plymouth highschool. His daughter Coral was living in her own home nearby when her father died but had been in the habit of stopping at the family home on frequent occasions and had many of her meals there.

By his will William Gibson nominated his widow Lillian as executrix and gave her $5,000 in cash and the family residence property and contents valued at $9,000. Said will also bequeathed to the trustees of the Presbyterian Church of Plymouth the sum of $300 and then directed the executrix to convert the residue of the estate, except certain United States government bonds, into cash out of which she was to pay the testator's debts and taxes and then turn over the balance to the State Exchange Bank of Culver, Trustee, for the benefit of his three children above named and his grandson Donald Travis in equal shares. The terms of the trust do not concern the questions involved in this litigation and require no exposition further than to say that as events have transpired since the testator's death said trust now has but a short time to run according to the provisions of the will.

At the time of William Gibson's death his estate consisted of both real and personal property including money in banks, United States government bonds, a postal savings account, a Ford automobile, farm produce, the family residence and contents, three rental properties in Plymouth and a small farm north of said city, all of the appraised value of $51,498.18. The will was probated in the Marshall Circuit Court and Lillian Gibson, the widow, qualified as executrix thereof with her three children Coral Nellans, Russell P. Gibson and Faye Travis as sureties on her bond. The executrix filed an inventory and appraisement of the estate's assets, paid the bequest to the Presbyterian Church, current property and inheritance taxes, the few small debts her husband owed at the time of his death, his funeral expenses, costs of his last sickness and purchased a cemetery lot and a monument to mark his grave. From this point on she paid little or no attention to the provisions of her husband's will but managed the estate as though it were her own. The family continued as it had been living except that Russell and Faye ceased paying board in August, 1946, and in the spring of 1948, respectively, after which they were supported more or less by estate funds which were managed by Lillian, the mother and executrix, and which seem to have developed into a sort of family depository out of which the mother lived and out of which she supplied money to her children and grandchild as their needs dictated from time to time. She maintained the home intact as it had been maintained prior to the death of her husband. She paid for extra housework, groceries, utility bills, taxes on all the property including her own, newspaper bills, insurance premiums, telephone bills, water bills, flowers for funerals of deceased friends, family doctor bills, farm expenses, contributions to local charities and spending money to her son Russell and grandson Donald, all out of estate funds. She collected rentals due the estate some of which she deposited to the estate's credit in a bank account and kept the remainder in her personal pocketbook. Some of the outlay above mentioned was paid in cash out of the pocketbook and some by check against the bank account. In August, 1947, she procured an order of court to sell the farm for $9,200 which she did and deposited the money to the credit of the estate. Out of this fund she distributed $2,000 to each of the four trust beneficiaries in disregard of the provisions of the will but which each of them accepted without protest and with full knowledge of the terms of said will. In the spring of 1947 Lillian Gibson's health began to fail and she became more or less incapacitated to carry on and her eldest daughter Coral Nellans helped her in many ways in handling the affairs of the estate such as writing checks and depositing money in the bank. As Lillian's health grew worse her illness caused great additional expense. Extra help was hired, a nurse employed and the services of a doctor were frequently required. All of this was paid out of the funds of the estate without objection on the part of any members of the family.

During all this time Lillian Gibson filed no report of her doings as executrix and had not done so up to the time of her death on January 4, 1950. The evidence, concerning the appellant Russell P. Gibson in particular, indicates that he lived in the family home continuously after his father's death until the property was sold by the administrator d.b.n.c.t.a. He lost his job in August, 1946, after which he had no employment except occasional and infrequent work in a local cigar store and consequently paid no board or room rent. His mother, out of estate funds, furnished all his meals and employed help to care for his room, do his laundry and other services for his personal comfort and convenience. From the same source she paid his doctor bills and nurse hire and medication expenses. He was a heavy drinker of intoxicating liquors and on a number of occasions his mother paid fines levied against him for public intoxication. The estate, through his mother, gave him spending money and he accompanied his family on vacation trips for which the estate paid all the bills. In short he accepted, without protest, the benefits and advantages of living as a member of a common family to the expenses of which he made no contribution after August, 1946, and before then only to the meager extent of $5 per week.

On these facts the court concluded, and so stated in its decree, that all the legatees and devisees under the will of William Gibson, deceased, including the appellant, 'knew full well and had complete knowledge that the funds of said estate were being used as they were and made no objections thereto nor found...