In re Estate of Harris R. Watkins, Dcd., Howard Natl. Bank & Trust Co.

• Decision Date: 02 February 1943
• Citation: 30 A.2d 305,113 Vt. 126
• Parties: IN RE ESTATE OF HARRIS R. WATKINS, Dcd., HOWARD NATL. BANK & TRUST COMPANY, APPELLANT
• Court: Vermont Supreme Court

30 A.2d 305

113 Vt. 126

IN RE ESTATE OF HARRIS R. WATKINS, Dcd., HOWARD NATL. BANK & TRUST COMPANY, APPELLANT

Supreme Court of Vermont

February 2, 1943

January Term, 1943.

Appointment of Administrator when Office of Executor is Vacated. Estoppel.

1. In the absence of any statute directly prohibiting it, the consolidation of a national bank and a state bank under the Act of Congress of November 7, 1918, C. 209, sec. 3, as amended February 5, 1927, C. 191, sec. 1, 44 Stat. at Large 1225, 12 U.S.C.A. 34 a, was not, even prior to enactment of No. 123, sec. 6, Acts of 1933, contrary to law or to public policy.

2. Where there is no state statute providing that the charter of a state trust company shall become void when it is consolidated with a national bank, the corporate identity of the trust company is not destroyed and its charter is not dissolved by the consolidation.

3. When a state bank and a national bank unite in a new consolidated corporation, the office of executor, theretofore held by the state bank, is not thereby transferred to the new corporation.

4. An executor is a person, or a corporation empowered to discharge the duties of a fiduciary, appointed as such by the testator in his will.

5. In appointing an executor the Probate Court has no power of choice, as the office is held by virtue of the testator's selection.

6. An executor's interest in the estate is not such as to permit him to transfer his office to another, his appointment being highly personal and being neither contractual in nature nor a property right.

7. There is no right to succession to the office of executor by any person not named by the testator in his will.

8. When a state bank and a national bank are consolidated under the Act of Congress of November 7, 1918, C. 209, sec. 3, as amended February 5, 1927, C. 191, sec. 1, 44 Stat. at Large 1225, 12 U.S.C.A. 34 a, the charter of the state bank remains subject to the state's jurisdiction, in the absence of a state statute rendering such charter void upon the consolidation.

9. When the office of executor becomes vacant, it is the judicial duty of the Probate Court to appoint an administrator.

10. The burden of proving an estoppel rests upon the party asserting it, and he must establish all the facts necessary to constitute the defense.

11. It is essential to an estoppel that the party claiming it shall have relied upon the conduct of the party sought to be estopped, and in consequence of such reliance, shall have been induced to act to his prejudice.

12. The reliance necessary to show estoppel may be established by inference from proven facts.

13. Presumption that the trier of fact made permissible inferences is allowed only in support of the judgment and not to effect a reversal.

14. Estoppel is not shown when the facts are known to or equally ascertainable by both parties.

15. The duty of appointing an administrator when the office of executor is vacant is one from which the Probate Court may not be precluded by any showing of estoppel or waiver.

APPEAL from decree of Probate Court, District of Chittenden, Francis D. Foley, J., declaring office of executor to be vacant.

Decree affirmed and the cause remanded to the Probate Court for the District of Chittenden. To be certified.

Guy M. Page, John J. Deschesnes, Frederick P. Smith and Grace J. Murphy for petitionee.

Lawrence & O'Brien for petitioners.

Present: MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.

OPINION

MOULTON

This is a petition brought on June 11, 1941, to the Probate Court for the District of Chittenden by Emily Tenney Morgan, and her sons Richard Morgan and William S. Morgan, Marian Bayley Buchanan, and the latter's minor children, Lucia Bayley Buchanan, Edwin Bayley Buchanan, Ellen Grier Buchanan and Eustace Watkins Buchanan, represented by their guardian ad litem (hereinafter called the petitioners), all of whom are parties in interest in the estate of Harris R. Watkins, deceased, against the Howard National Bank and Trust Company (hereinafter called the petitionee). It is alleged that the City Trust Company, a banking corporation organized under and by virtue of the laws of the State of Vermont, which was the executor named in the will of Harris R. Watkins and was appointed as such by the Probate Court has wholly ceased to function and carry on its corporate business, including the exercise of its authority and the performance of its duties as executor since March 12, 1931, and that the petitionee, a banking corporation organized and existing under and by virtue of the laws of the United States, which has not applied for appointment as executor or administrator with the will annexed, and has given no bond, and has not been appointed executor or administrator, has wrongfully and without legal right taken possession and control of the assets of the estate and has wrongfully undertaken and attempted to act as executor; and that the petitionee has, by its acts and conduct relating to the estate, become an executor de son tort, and that there is now no legal executor or administrator of the estate. The prayer is that some suitable person be forthwith appointed administrator with the will annexed, and for general relief.

The answer of the petitionee alleges that on March 12, 1931, the City Trust Company, theretofore the executor of the will of Harris R. Watkins, was consolidated with the Howard National Bank, a corporate instrumentality of the United States, into a corporation of the United States under the name and style of the Howard National Bank and Trust Company, having the same officers and directors as the City Trust Company, and, by virtue of the laws of the United States and in harmony with the laws of the State of Vermont, the powers, property, rights, obligations and duties of the City Trust Company as fiduciary, including the executorship under the will of Harris R. Watkins, devolved upon the consolidated corporation, the petitionee, and have been exercised by it; that the City Trust Company has continued its existence as a constituent part of the petitionee, and is an instrumentality of the United States the corporate existence of which the State of Vermont, since the date of the consolidation, has been without power to regulate, control or terminate, as such constituent part; that the consolidated corporation and its nature were known to the Probate Court, and by its decrees the petitionee was recognized as the executor, and that the petitioners knew of the merger and that the petitionee was acting as executor, and consented thereto and accepted payments made by it in pursuance to decrees of the Probate Court, and are therefore estopped, both by the record and by matters in pais, to deny the right of the petitionee to act as executor.

After hearing, and making a written finding of facts, the Probate Court entered a decree by which it was adjudged that the petition should be allowed; that the City Trust Company has ceased to exist as a corporate entity, for the purposes of the case; and that a vacancy exists in the office of executor of the Estate of Harris R. Watkins, which vacancy must be filled by the appointment of an administrator with the will annexed. The petitionee has brought the cause to this Court on exceptions to the decree. The petitioners also excepted to certain of the findings of fact and to the refusal of the Court to comply with certain of their requests for findings.

The Maryland Casualty Company, surety on the bond of the City Trust Company, was made a party to this proceeding, and moved to be dismissed as being improperly joined. This motion was denied, but since no exception was taken, we give the matter no further attention.

We first consider whether the consolidation of the City Trust Company and the Howard National Bank caused the rights and duties of the City Trust Company, as executor of the Estate of Harris R. Watkins, to devolve upon the petitionee, the consolidated corporation, and automatically to constitute it the legal executor. Upon this question the following facts, found by the Probate Court, are pertinent:

Harris R. Watkins died testate on February 18, 1930, leaving him surviving his widow, Nellie E. Watkins, but no issue. In his will he named the City Trust Company, a banking corporation organized and existing under and by virtue of the laws of the State of Vermont, as his executor. After directing the payment of his just debts and funeral expenses, and bequeathing certain personal property to his widow, he devised and bequeathed all the residue of his substantial estate, both real and personal, to the City Trust Company, upon trust to hold, manage, invest and reinvest the same for the benefit of Mrs. Watkins and to pay over the net annual income to her during her life. Upon her death, and after the payment of two legacies, he directed the income from the trust fund to be divided equally between his nieces, Emily Tenney Morgan and Marian Bayley Buchanan, and paid to them in quarterly installments as long as they both should live; and within one year after the death of one of them, the fund to be distributed in equal shares to the issue of the two nieces.

The will was proved and allowed and the City Trust Company, having given the required bond, received its letters testamentary by decree of the Probate Court for the District of Chittenden on March 18, 1930, and thereupon took possession and control of the assets of the estate as executor.

Nellie E. Watkins died on April 14, 1930, and the two legacies, payable upon her death, have been delivered to the legatees.

On March 12, 1931, the City Trust Company was consolidated with the Howard National Bank, a banking corporation organized and existing under the laws...