In re Stahl's Estate

• Decision Date: 13 November 1942
• Docket Number: 17060.
• Citation: 44 N.E.2d 529,113 Ind.App. 29
• Court: Indiana Appellate Court
• Parties: In re STAHL'S ESTATE. FIRST NAT. BANK & TRUST CO. OF LA PORTE et al. v. SMITH et al.

44 N.E.2d 529

113 Ind.App. 29

In re STAHL'S ESTATE.

FIRST NAT. BANK & TRUST CO. OF LA PORTE et al. v. SMITH et al.

No. 17060.

Appellate Court of Indiana, in Banc.

November 13, 1942

Ben C. Rees, of La Porte, for appellants.

John B. Dilworth, of La Porte, for appellees.

BLESSING Judge.

This is a consolidation of two appeals, one being an appeal from a judgment denying an application for letters testamentary to appellant as a successor executor, and the other being an appeal from a judgment appointing an administrator with will annexed de bonis non of the estate of Albert J. Stahl deceased.

Albert J. Stahl, the testator, died on the 13th day of November 1941, at the age of 88 years, and his last will and testament and three codicils thereto were thereafter admitted to probate in the LaPorte Circuit Court.

The item in said last will and testament which pertains to the appointment of executors reads as follows:

"Item 2. I hereby nominate and appoint The State Bank of A. P. Andrew, Jr. & Son, of LaPorte, Indiana, as Executor of this my last Will and Testament.

"In case of the failure of my said Executor to qualify or in case of its refusal to act, resignation, removal or dissolution, I hereby nominate and appoint the First National Bank and Trust Company of LaPorte, Indiana, as Executor of this Will.

"It is my wish that said Executor shall seek the counsel and advice of my trusted and devoted friends, Emma Zieke and Alfred J. Link, in all matter pertaining to the administration of my estate."

Item II of the third codicil to said will was executed August 15, 1941, and contained the following language: "Item II: Wherein the mention is made of the name of Alfred J. Link in my last Will and Testament dated May 8th, 1936, I hereby request that the name of Alfred J. Link shall be extirpated in each and every instance and the name of ALBAN M. SMITH be inserted in his place and that the said Alban M. Smith shall seek counsel and advice of Emma Zieke, as per Item 2 of my said Will."

The State Bank of A. P. Andrew, Jr. & Son qualified as the executor of said will on November 21, 1941, and employed appellee Alban M. Smith as its attorney. On April 2, 1942, the stockholders of the State Bank of A. P. Andrew, Jr. & Son adopted a resolution for the voluntary dissolution of the bank, and on the 18th day of April, 1942, the liquidating agents of the said bank filed in the office of the Clerk of the LaPorte Circuit Court, its written resignation as executor of the estate herein involved, and asked that it be discharged from the further exercise of its office.

On the same day that the resignation was filed, the appellant filed in the said Clerk's office its acceptance of its appointment as successor executor of the estate of Albert J. Stahl, deceased, its executor's oath, and its application for letters testamentary in said estate.

When the abovementioned documents were offered for filing in open court, the resignation of the State Bank of A. P. Andrew, Jr. & Son as executor, and the application of the appellant for letters testamentary were filed, but the court refused to file the written acceptance of trust and oath of the appellant. On April 27, 1942, the appellant again tendered to the court and offered to file its written acceptance of its trust as successor executor and its oath, but the court refused this offer.

On April 24, 1942, the appellees Alban Smith and Emma Zieke filed a petition for the construction of the will and determination of rights in respect, 1st, to the duty of the court to qualify the appellant as a successor executor; 2nd, in respect to qualifying Hupp as administrator with the will annexed de bonis non; and, 3rd, in respect to the continuance of appellee Smith as attorney for the successor executor or administrator with the will annexed. Appellant moved to strike out this petition, and, when overruled, filed answer, to which appellees Smith and Zieke filed a reply.

The matter was submitted to the court for trial on May 12, 1942, upon the application of the appellant for letters testamentary, and upon the petition of the appellees Smith and Zieke. Upon appellees' request, the court rendered special findings of fact and conclusions of law. On May 26, 1942, after the court had stated its conclusions of law, the resignation of the State Bank of A. P. Andrew, Jr. & Son was accepted by the court. Thereafter, on May 29, 1942, the appellant again filed in the office of the Clerk of the LaPorte Circuit Court its acceptance of appointment as successor executor of the estate of Albert J. Stahl, deceased, its oath as such executor, and its application for letters testamentary. The court, on June 1, 1942, refused to file the acceptance and oath, but permitted the application for letters testamentary to be filed.

Also, on June 1, 1942, the appellees Smith and Zieke filed a petition, together with a bond and an oath, for the appointment of J. Earl Hupp, president of the State Bank of A. P. Andrew, Jr. & Son, as administrator with will annexed de bonis non of the estate of Albert J. Stahl, deceased. Appellant filed its written objections to said petition. These objections were overruled and exception taken.

The court thereafter entered a judgment denying appellant's application for letters testamentary and appointment as successor executor; granting the petition of Smith and Zieke to issue letters of administration with the will annexed de bonis non to said Hupp as administrator, and directed the resigning executor, the State Bank of A. P. Andrew, Jr. & Son, to file a final report and accounting.

Appellant then filed a motion to set aside the appointment of Hupp as administrator and to revoke the letters of administration issued to him, which motion was overruled, and to which ruling exception was reserved.

Appellant has assigned as error the overruling of its motion to dismiss the petition for the construction of the will and determination of rights filed by Alban Smith and Emma Zieke; the refusal to permit appellant to file its acceptance of trust and executor's oath which was tendered on June 1, 1942; the denial of appellant's application for appointment as executor of the estate of Albert J. Stahl, deceased, filed on June 1, 1942; the overruling of appellant's motion to set aside the appointment of J. Earl Hupp as administrator; the overruling of appellant's motion for new trial, and error in each conclusion of law.

While the pleadings and proceedings in this matter before the lower court are confusing, the appellees, after the amendments to appellant's brief, concede that there is squarely before this court, upon proper assignment of errors, the question as to the correctness of the two judgments of the La Porte Circuit Court acting within its probate jurisdiction. The records in both cases present substantially the same questions.

The first question requiring our consideration is whether a testator may appoint a successor executor who is entitled to succeed to the administration of the testator's estate following the resignation of the first executor who has partially administered upon such estate.

The question of successive executors has never been adjudicated in this state, but it has been held in other states that a testator may name two or more persons as his executors, not to serve as coexecutors, but by way of providing for succession or substitution in case the person or persons primarily designated, die, resign, or are unable to serve, and a successor thus appointed to complete the administration is an executor by substitution and not a mere administrator with the will annexed de bonis non.

In the case of Kinney v. Keplinger, 1898, 172 Ill. 449, 50 N.E. 131, 132, the will in question contained the following provision: "I hereby appoint my wife Sarah Clark, executrix of my last will and testament, and that she shall not be required to give bond; and, in case of her death or inability to act, I hereby appoint Michael Kinney executrix [executor] of my last will and testament * * *." The wife, Sarah Clark, served as executrix for four years before her death, and upon her death, the court appointed the said Kinney as executor. The court in said case held that Kinney was an executor and not an administrator. In the opinion, the court quoted the following passage from 1 Lomax, Ex'rs, p. 172: "Where a testator appoints an executor, and provides that in case of his death another should be substituted, then on the death of the original executor, although he has proved the will, the executor so substituted may be admitted to the office, if it appears to have been the testator's intention that the substitution should take place on the death of the original executor, whether happening in the testator's lifetime or afterwards." The court also said: "In Hartnett v. Wandell, 60 N.Y. 346 , the court had occasion to consider this question, and expressed its conclusions in the following language: 'Executors may be appointed with separate functions, or to succeed each other in the event that those first named shall die, become incapacitated, or unwilling longer to serve, or two persons may be appointed to act for a definite period or during the minority, or during the absence from the country of one appointed executor."'

From an examination of our statutes we are unable to find any provision that prevents a testator or in any wise denies him the right to name and appoint a successor executor, and the appellees concede that the weight of authority, if followed, requires an affirmative answer to the above question. We so answer.

The right of a testator to appoint a successor executor being established, the appellant's right, following the resignation of the State Bank as the executor of the last will...