In re Schuster's Estate

• Decision Date: 07 October 1929
• Docket Number: Civil 2761
• Parties: In the Matter of the Estate of BENJAMIN SCHUSTER, Deceased. v. ADOLF SCHUSTER, as Trustee, Appellee MARGUERITE SCHUSTER ELLISON, Appellant,
• Court: Arizona Supreme Court

281 P. 38

35 Ariz. 457

In the Matter of the Estate of BENJAMIN SCHUSTER, Deceased.

MARGUERITE SCHUSTER ELLISON, Appellant, v. ADOLF SCHUSTER, as Trustee, Appellee

Civil No. 2761

Supreme Court of Arizona

October 7, 1929

APPEAL from an order of the Superior Court of the County of Apache. Andrew S. Gibbons, Judge. Order affirmed.

Mr Theron J. Bryne and Messrs. Newlin & Ashburn, for Appellant.

Mr Levi S. Udall, Mr. Sidney Sapp and Messrs. Chalmers Fennemore & Nairn (Mr. Henry W. Allen and Mr. W. E. Ryan, of Counsel), for Appellee.

OPINION

LOCKWOOD, C. J.

This is an appeal from an order of the superior court of Apache county settling the account of Adolf Schuster as testamentary trustee under the will of his brother Benjamin Schuster. The facts leading up to the filing of the account may be briefly stated as follows:

Adolf Schuster, hereinafter referred to as appellee, and Benjamin Schuster, hereinafter called the deceased, had for many years prior to November 27th, 1911, been equal partners in the conduct of a general livestock and mercantile business in Navajo and Apache counties. The relations between them were unusually intimate and confidential, even for brothers, the title to practically everything owned by them, whether pertaining to the partnership business or not, being held in common. On the date mentioned Benjamin Schuster, being in failing health, made a will, by the terms of which appellee, another brother, Max Schuster, and Josephine Schuster, the wife of deceased, were appointed joint executors, and also trustees of a trust estate created by the will. December 5th a codicil was added providing that the business theretofore run as a partnership should be incorporated. The provisions of the will and codicil necessary for the consideration of this case read as follows:

"To take, manage and control the same; to invest and re-invest the same; to improve, sell, transfer and convey upon such terms as they may deem to be for the benefit of the estate any of the property thereof; to borrow money, and to execute mortgages and renewals and extensions of mortgages thereon; to purchase additional real and personal property, and to improve, mortgage and convey the same, and to keep the estate, or so much thereof as to them may seem proper, in the form of improved, income-bearing real property, or well secured interest bearing loans; to continue the conduct and operation of the partnership business between myself and my said brother Adolf Schuster above referred to, or to sell or to liquidate the same, or any part thereof, or to join in or consent to such sales, or transfer or re-organization of said partnership business as will place the same in a corporation, and to evidence the interest of my said estate, or of this trust, in such business so incorporated by certificates of stock therefor; and in the premises my said beloved brother, Adolf Schuster, is hereby given the right to himself in his individual capacity, become the purchaser of any of the property, or interest of my said estate, or of this trust, in said copartnership, or in any corporation that may be formed to take the same over, provided that such purchase by him shall be approved and confirmed, upon the petition of any two of the trustees hereunder, by the court that may have jurisdiction of the probate of this estate; to receive and collect the rents, issues and profits of all of my property and estate, and after paying the expenses incident to the management and control of said property and the administration of said trust, including the payment of taxes, necessary repairs, interest on indebtedness, or whatever may be a charge against the property of said estate, or the maintenance thereof, to hold and use the principal, and to apply the rents, issues and income thereof as follows, to-wit:

"(a) Eight-twelfths (8/12) of all of such rents, issues and income to my said beloved wife, Josephine Schuster, during her natural life, to be paid to her semi-annually, or monthly if more convenient to said trustees; and upon her death, said trust as to her shall terminate, and the principal, to-wit, said eight-twelfths (8/12) shall go to and vest in, and I hereby give, bequeath and devise the same in that event, and upon the happening of that condition, unto my said beloved four children, share and share alike. As to the share, however, that hereunder would go to any of my said four children before such child reaches the age of twenty-seven years, such share shall be held under the same trust as is hereinafter set forth in paragraphs (b) and (c) hereafter, and for the same term and in the same manner. The share of any deceased child, if married, to go to its issue then surviving share and share alike, and if unmarried, then to be divided share and share alike among my said surviving children, or to their issue respectively, share and share alike.

"(b) As to the remaining four-twelfths (4/12) of said rents, issues and income, I desire that each of my said four children shall receive the benefit thereof, to-wit, one-fourth each of them, for their education, maintenance and support, respectively, and to that end my said trustees are to pay to my said beloved wife, Josephine Schuster, one-fourth of said four-twelfths for each of my said children during its minority for its maintenance, education and support, and after each of my said children reaches its majority, the income of such one-fourth shall be paid by my said trustees to such child direct until the principal of said one-twelfth, under the terms of this Will, is paid to such child.

"(c) As to the principal of said four-twelfths, my said trustees shall continue to manage the same under their general powers heretofore given to them as trustees, until my said four children respectively reach the age of twenty-two years; and as soon as any of my said four children reach the age of twenty-two years my said trustees shall pay over and deliver one-half of such one-twelfth, to-wit, one-twenty-fourth, of my said estate, to such child freed from the further operation of this trust, and as soon as said children reach the age of twenty-seven years, my said trustees shall pay over and deliver and distribute to such child the other half of said one-twelfth, to-wit, one-twenty-fourth of my said estate, freed from the further operation of this trust, it being understood that the interest or income above referred to is diminished proportionately after the first half of the share of said child is delivered to it at the age of twenty-two years as aforesaid. If any of said children shall marry, the first half of said principal, to-wit, one-twenty-fourth thereof, shall be payable upon such marriage, and the second one-half five years thereafter, instead of at the fixed period of twenty-two years and twenty-seven years. Upon the payment or distribution of such second half the same shall be owned and held by said children, their heirs and successors thereafter, free from the further operation of this trust.

"Seventhly. I hereby appoint the same persons as the executors of this my Last Will and Testament whom I have appointed as my trustees, to-wit, my said beloved brothers, Adolf Schuster and Max Schuster, and my said beloved wife Josephine Schuster, and with the same rights and powers as they have as trustees, and I direct that no bond or undertaking be required of them or either of them, in the capacity of executors or trustees. I hereby authorize and empower my said executors and the survivors or survivor of them, and likewise my said trustees and the survivors or survivor of them, to sell, convey, mortgage, lease, and otherwise deal in, with, or dispose of any or all of the property of my estate, on such terms and at such times, and in such manner as to them shall seem best, and without the permission or other order of any court therefor, and to make, execute, acknowledge and deliver any and all instruments in writing necessary, or proper, or requisite therefor. However, as to any sale of my interest in the said co-partnership existing between my said brother Adolf Schuster and myself, or as to the purchase thereof by him, or for his benefit, directly or indirectly, or as to the re-organization or other handling thereof so as to incorporate the affairs of the business of said co-partnership into a corporation, and to issue stock therefor, I do specially hereby authorize and empower my said executors to make such sale, and my said brother Adolf Schuster to become a purchaser thereat, and I do authorize my said executors to cause a corporation to be formed, incorporating said partnership business, and issuing stock therefor to my said estate for its interest in said partnership -- provided such purchase by my said brother, or such incorporation, be confirmed by the order of the court having jurisdiction of the matter of my estate, upon the petition of any two of my said executors. The same powers and rights with reference to incorporation or purchase of said property are given to each of my said trustees or executors as are herein given to my said trustee and executor, Adolf Schuster. And in case of sale, or in case of incorporation the proceeds of such sale, or the shares of stock in said corporation so to be formed, shall be held under the trusts and provisions of this Will in lieu of the said partnership property itself, and the trust with reference to such original partnership property shall upon such sale or incorporation be terminated. I make these provisions giving such authority to purchase or to incorporate to my said two brothers and to my said beloved wife, although such powers are not usually given to executors or to trustees, because I have every confidence in them, and in their judgment, and desire that...