Holmes v. Hrobon

• Decision Date: 16 April 1951
• Citation: 93 Ohio App. 1,103 N.E.2d 845
• Parties: , 61 Ohio Law Abs. 113, 61 Ohio Law Abs. 241, 50 O.O. 178 HOLMES v. HROBON et al.
• Court: Ohio Court of Appeals

Page 1

93 Ohio App. 1

103 N.E.2d 845, 61 Ohio Law Abs. 113, 61 Ohio Law Abs. 241,

50 O.O. 178

HOLMES v. HROBON et al.

Court of Appeals of Ohio, Franklin County.

April 16, 1951.

On Application for Rehearing July 12, 1951.

On Application for Findings of Fact and Conclusions of Law Dec. 26, 1951.

On Application for Reconsideration Jan. 14, 1952.

Pickrel, Schaeffer & Ebeling, Dayton, Ralph Stickle, Cleveland (Herbert & Dombey, Paul M. Herbert and Edwin M. Tuttle, Columbus, of counsel), for defendant-appellant.

John H. Summers, Columbus, for plaintiff-appellee.

Wright, Harlor, Purpus, Morris & Arnold, Columbus (Earl F. Morris, Columbus, of counsel), for defendants-appellees.

WISEMAN, Judge.

This is an appeal on questions of law and fact from the judgment of the Probate Court of Franklin County. The matter is presented to this Court on the motions of the trustee and legatees to confirm the report of the Referee appointed by this Court, and on the motions of the life tenant to vacate and set aside the report of the Referee and grant a new trial. The principal ground of the motion of the life tenant is that the report is not sustained by sufficient evidence and is contrary to law.

Part I

This is an action for a declaratory judgment instituted October 3, 1946 by Harry B. Holmes, trustee of the trust created in the will of Clay M. Thomas, deceased. The widow, Mae Thomas, the life tenant, who has since remarried and is now Mae Thomas Hrobon, and the legatees, Clara J. Thomas Mann, Millie K Thomas Watson, and Ray G. Thomas, the sisters and brother, respectively, of the testator, and a legatee, Margaret Cassidy, were all named parties defendant. All parties were represented by counsel.

The trustee propounded fourteen questions, which require a construction of the will and a determination of certain issues which arose in the conduct of the trust, an accounting between the trustee and the life tenant, and a determination as to corpus and income as between the life tenant and remaindermen.

The legatees filed an answer in which they joined in the prayer and relief sought in the amended petition filed by the trustee. The widow and life tenant, Mae Thomas Hrobon, in her answer denied various allegations in the trustee's amended petition, made certain allegations and by way of affirmative relief, asked the Court to instruct the trustee in respect to eight questions therein set forth, and joined in the prayer of the trustee for the judgment and direction of the Court in regard to the construction of said will and as to the duties of the trustee in the premises.

The Probate Court appointed a special master commissioner to take the testimony. Seven volumes of testimony and hundreds of exhibits were submitted at the hearing, which extended over a period of many weeks. The master submitted his report, which contained a finding of facts and conclusions of law. A judge of the Common Pleas Court of Franklin County was appointed Acting Probate Judge to consider the matter. Judgment was rendered in the Probate Court on April, 1949. Notice of appeal on questions of law and fact was filed by Mae Thomas Hrobon. Counsel for all parties stipulated that the matter on appeal may be heard and considered by this Court on the record taken in the Probate Court. This Court appointed a referee to consider the matter, who filed his report on January 2, 1951. To this report were filed the motions which are before this Court for determination.

A competent and reliable firm of accountants of Columbus, Keller, Kirschner, Martin and Clinger, was selected by the trustee to make a complete audit of his administration as executor of the estate of Clay M. Thomas, and as trustee of the trust created by the testator. The report of the accountants covers the period from May 1, 1938 to August 31, 1946. The opening date of the accounting (May 1, 1938) was sixteen days after the date of the death of the testator, which occurred on April 14, 1938; and the opening date of the accounting is one month prior to the date of the appointment of Harry B. Holmes as executor, which occurred on June 1, 1938. The closing date of the accounting of the executor was December 31, 1938. The closing date of the accounting of the trustee (August 31, 1946), is approximately one month prior to the date on which the trustee filed this action in the Probate Court. No accounting has been submitted to the Court by the accountants for the period subsequent to August 31, 1946, although some testimony was taken relative to certain transactions occurring at a later date. The report of the accountants consists of one hundred ninety-six pages in the form of a bound volume, which contains twenty-one separate exhibits and forty-five separate schedules. This report is referred to as 'Plaintiff's Exhibit X', and gives a detailed statement of receipts and disbursements of the executor and trustee, the various appraisals of estate assets, income received and disbursed, real estate transactions conducted by the executor and trustee, the corpus of the trust, income disbursed to the life tenant, purchases and expenditures made by the trustee in the operation of the laundry, and adjustments of the trustee's accounting to conform to what the accountant considered to be good accounting practice, and other related matters.

Part II

On January 23, 1937, Clay M. Thomas, a resident of Columbus, executed his last will and testament, the pertinent part being as follows:

'Item I.

'I direct that all my just debts and funeral expenses be paid out of my estate as soon as practicable after the time of my decease.

'Item II.

'I give and bequeath to my sister, Clara J. Thomas Mann, the sum of $15,000.00, the same to be paid to her by my said executor and trustee at the rate of $100.00 per month; but in the event that my said executor or trustee should deem it encessary and convenient to pay to her more than $100.00 per month, he shall so do.

'Item III.

'I give and bequeath to my sister, Millie K. Thomas Watson, the sum of $15,000.00, the same to be paid to her by my said executor and trustee at the rate of $100.00 per month; but in the event that my said executor or trustee should deem it necessary and convenient to pay to her more than $100.00 per month, he shall so do.

'Item IV.

'I give and bequeath to my brother, Ray G. Thomas, the sum of $15,000.00, the same to be paid to him by my said executor and trustee at the rate of $100.00 per month; but in the event that my said executor or trustee should deem it necessary and convenient to pay to him more than $100.00 per month, he shall so do.

'It is my wish that my said trustee, Harry B. Holmes, or his successor in the trust, shall hold, manage and control the bequests hereinbefore made in Items 2, 3, and 4, and that my said executor and trustee shall invest the said funds in government bonds or other securities of like nature as my trustee in his discretion may deem best, with the full power to pay to my sisters and brother the sum of $100.00 per month, to be applied on the amount of the bequests, and to pay such a sum over and above the $100.00 herein stipulated as in the discretion of my trustee may be necessary to provide a comfortable living for my said legatees hereinbefore referred to.

'In the event of the death of any of the legatees hereinbefore referred to, then his or her share shall be equally divided among my surviving sisters or brothers, or any of them, share and share alike.

'And in the event of the death of all of my sisters and brothers before my death, then it is my will that their shares shall revert to my wife.

'Item V.

'All the balance of my property, both real and personal, of every kind and description, wheresoever situated, which I may own or have the right to dispose of at the time of my decease, I give, bequeath and devise to my wife, Mae Thomas, in trust, for the benefit and the use of my wife, for and during her life; hereby directing my said trustee, Harry B. Holmes, to pay to her for her use and benefit all the income after the payment of operating expenses and taxes and other charges from my business at The Atlas Linen Laundry and Supply, or any other income that I may have after the payment of the other monthly legacies which I herebefore have set out, with full power granted to my said trustee to lease, transfer, or exchange any securities and property belonging to said trust fund for such prices and upon such terms and conditions as he may deem best, and for the best intersts of my wife; to execute and deliver any proxies, powers of attorney, or agreements that the trustee may deem necessary or advisable in administering this trust; and also with full power to compound, compromise, settle and adjust, all claims and demands, in favor of or against the trust estate, upon such terms and conditions as he may deem best. Upon the death of my said wife, the said trust as herein created shall cease, and the trustee or his successor shall convey and transfer to my legal heirs the balance of the said property, share and share alike, at the time of the death of my said wife.

'I make, nominate, and appoint my attorney, Harry B. Holmes, of Columbus, Ohio, to be the executor and trustee of this, my last will and testament, with full power and authority to conduct and carry on the laundry business now conducted by me, and to do all things necessary or proper in the usual course of said business until such a time as the same can be sold, as a going business, for a price, which, in the opinion of my said executor, and in the opinion of my said wife, Mae Thomas, is a reasonable value thereof, and with full power and authority to sell and dispose of any or all of my estate, hereby authorizing and empowering my said executor to compound, compromise, settle and adjust all claims and demands in favor of or against my estate, and to sell, at private or public sale, at such prices, and upon such terms of credit or otherwise, as he...