Kyle's Estate, In re

• Citation: 106 Ohio App. 502,155 N.E.2d 498
• Parties: , 7 O.O.2d 229 In re ESTATE of KYLE.
• Decision Date: 06 June 1958
• Court: United States Court of Appeals (Ohio)

Page 502

106 Ohio App. 502

155 N.E.2d 498, 7 O.O.2d 229

In re ESTATE of KYLE.

Court of Appeals of Ohio, Miami County.

June 6, 1958.

Syllabus by the Court

Under the provisions of Section 2113.58, Revised Code, affording protection to a remainderman's interest in personal property, the Probate Court may, at its discretion and after distribution to the person having a life estate in such property, require from such person a bond at any time prior to the termination of such life estate.

Raymond E. Cookston and Owen C. Neff, Cleveland, for appellant Arthur K. Beedle.

Faust & Harrelson, Troy, for appellees remaindermen.

CRAWFORD, Judge.

This cause is before us as an appeal on questions of law from an order of the Probate Court of Miami County requiring Maggie Kyle Beedle and her son, Arthur K. Beedle, both as her guardian and individually, to deliver to a trustee (when appointed upon proper application) certain assets which came into their hands from the estate of Mary A. Kyle, deceased.

There might conceivably be some question whether this constituted a final order. But that question has not been raised. And in our view, assuming that it is a final order, still the procedure may need some modification. Hence, so as to expedite the conclusion of the matter we shall, like counsel, treat the order as a final one.

The will of Mary A. Kyle, deceased, was admitted to probate in Miami County, Ohio, about November 4, 1949. Item IV of her will provides:

'Subject to the above items, I give, devise and bequeath to my sisters Clara Kyle Demmitt and Maggie Kyle Beedle, all the property of which I die possessed, for and during their natural lives in equal shares, and to the survivor of them for life. If it should become necessary for the comfort and support of either that a part or all of the principal be used, then each may use her one-half of the principal, or the survivor may use all.'

Item V of her will bequeathed and devised the remainder to nieces and nephews. None of these remaindermen, who are nonresidents of Ohio, received notice of the probate of the will. The assets were distributed to Clara Kyle Demmitt and Maggie Kyle Beedle and the final account was filed on June 26, 1950.

Thereafter, Clara Kyle Demmit died, and her estate was administered in the Probate Court of Miami County. Thereupon, for all practical purposes involved here, Maggie Kyle Beedle became the sole surviving life tenant and as such acquired the remainder of the personal assets and securities which had belonged to the estate of Mary A. Kyle.

Maggie Kyle Beedle is now approximately 90 years of age. She has removed, with the assets, to Cuyahoga County; and her son, Arthur K. Beedle, has now been appointed her guardian by the Probate Court of that county and has apparently taken full charge of all her assets including the property here in question.

On April 9, 1954, four remaindermen filed in the Probate Court of Miami County an application to commit securities to a trustee and to restore funds. Upon this application the Probate Court of Miami County made the order now appealed from.

The remaindermen, appellees, herein, rely upon the provisions of Section 2113.58, Revised Code, which reads as follows:

'When by a last will and testament the use or income of personal property is given to a person for a term of years or for life and some other person has an interest in such property as remainderman, the probate court, unless such last will and testament otherwise provides, may deliver such personal property to the person having the limited estate, with or without bond, as the court may determine; or the court may order that such property be held by the executor or some other trustee, with or without bond, for the benefit of the person having the limited estate. If bond is required of the person having the limited estate, or of the trustee, it may be increased or decreased, and if bond is not required in the first instance it may be required by the court at any time prior to the termination of the limited estate.'

No bond has ever been required. But the limited estate of Maggie Kyle Beedle not having terminated, the Probate Court of Miami County is clearly empowered to require of her a bond at this time.

Having only a limited estate, Maggie Kyle Beedle is in some sense a fiduciary for the remaindermen. 20 Ohio Jurisprudence (2d), 317, Estates, Section 78; Johnson v. Johnson, 51 Ohio St. 446, 38 N.E. 61; In re Estate of Graham, 65 Ohio Law Abst. 161, 98 N.E.2d 104.

While we cannot agree with the argument that she is required to obtain the approval of the Probate Court before consuming any portion of the principal necessary for her comfort and support, nevertheless her acts in so doing are subject to judicial inquiry by that court. Kern v. Kern, 100 Ohio App. 327, 136 N.E.2d 675.

The statute provides no standard by which the court shall determine whether a bond ought to be required. The question is left to the court's discretion. It is unnecessary that fraud or waste...