McCabe v. Grantham
| Decision Date | 14 February 1941 |
| Docket Number | 16560. |
| Parties | McCABE et al. v. GRANTHAM. |
| Court | Indiana Appellate Court |
William J. Sprow, of Crawfordsville, for appellants.
Harding & Harding and Harry N. Fine, all of Crawfordsville, for appellee.
DE VOSS, Judge.
On August 18, 1937, appellee herein filed in the Montgomery Circuit Court her verified claim against the estate of Charles M. McCabe, deceased, which estate was represented by appellants as executors of the last will and testament of said Charles M. McCabe.
The claim as filed is predicated upon a trust alleged to have been created by and between appellee's decedent, James F Grantham, and decedent of appellant, Charles M. McCabe whereby appellee's decedent placed with appellant's decedent U. S. Government Bonds in the principal sum of $11,000, to be held in trust until some litigation relating to the payment of a note was terminated; that said McCabe represented said Grantham as his attorney therein; that said litigation remained pending and was not disposed of until November 12, 1932; that appellant's decedent failed and refused to return said bonds to said Grantham, but cashed the same, retained the proceeds thereof and that the funds derived therefrom are impressed with a trust and constitute a preferred claim against the estate of Charles M. McCabe.
The claim was disallowed by the executors of the will of Charles M. McCabe, deceased, and was transferred to the trial docket of the Montgomery Circuit Court as a cause of action therein pending.
Said cause was submitted to the court for trial, and at the proper time defendants (appellants) filed a request for special finding of facts and conclusions of law thereon by the court and the court did so make and file its special finding of facts and stated its conclusions of law thereon adversely to appellants, to each of which conclusions of law, appellants at the proper time excepted. Judgment was rendered for appellee against appellants in the sum of $15,744.23, with interest at the rate of 4 1/4% per annum from date, and that same be paid in preference to and prior to all claims of general creditors in due course of administration of said estate together with costs expended.
Appellants thereafter filed their motion for a new trial, which motion was overruled by the court, to which ruling appellants excepted and this appeal follows.
Errors assigned for reversal of the judgment herein are: (1) The court erred in each of its conclusions of law, separately and severally considered, as stated on its special finding of facts. (2) The court erred in overruling appellants motion for a new trial.
The specific reasons assigned in the motion for a new trial are (1) The decision of the court is not sustained by sufficient evidence. (2) The decision of the court is contrary to law.
By its special finding, the court, among other things, found that James F. Grantham died intestate on March 2, 1929, and that his widow, Ida Grantham, was duly appointed and qualified as administratrix of his estate; that Charles M. McCabe died testate on August 6, 1932, and that Charles E. McCabe and William W. Kummings were duly qualified as executors of his last will and testament and that each of the above named decedents was, at the time of his death, a resident of Montgomery County, Indiana; that James F. Grantham on March 25, 1920, executed a note to the Indiana National Finance Corporation payable four months after date and that when the same became due in the year 1920, he employed Charles M. McCabe as attorney to represent him in resisting the payment thereof; that a complaint was filed thereon and said Charles M. McCabe continued to represent said James F. Grantham as his attorney therein until the death of said Charles M. McCabe, and that on November 12, 1932, said cause of action was dismissed at costs of plaintiff; that at the time said Charles M. McCabe was so employed by said James F. Grantham, said James F. Grantham was the owner of certain U. S. Liberty Bonds of the par value of $21,050; that said bonds consisted of one $10,000 registered bond, one registered bond of the par value of $50 and the following coupon bonds, namely: 1 Bond, par value $5,000; 1 Bond, par value $5,000; 1 Bond, par value $500; 1 Bond, par value $500.
That soon after his employment said Charles M. McCabe requested said Grantham to turn all of said bonds over to him to be held by said McCabe for said Grantham, and that pursuant to such request said Grantham delivered all of said bonds to said McCabe who received and took custody of them; that thereafter upon request of said Grantham said McCabe delivered to him (Grantham) the $10,000 registered bond, but retained the balance of said bonds; that from time to time thereafter upon request of said Grantham said McCabe failed and refused to deliver said bonds to said Grantham; that thereafter when the health of said Grantham began to fail, said Grantham sent his wife, Ida Grantham, to said McCabe and requested the return of said bonds, and that said McCabe delivered to her for her said husband one registered $50 bond, but refused to deliver the remainder thereof; that in the latter part of July, 1928, said Ida Grantham, at the request of her husband, went to said McCabe and requested him to deliver said bonds to her, but that he (McCabe) refused to turn the same over to her, but that said McCabe did deliver to said Ida Grantham a written statement in the following words:
That after the death of said James Grantham, and after the appointment and qualification of Ida Grantham as administratrix of his estate, she from time to time, up until a few months prior to the death of said McCabe, requested that he turn said bonds over to her, but that he refused. That on several occasions when demand was made, said McCabe would indicate a date some weeks ahead and stated that on that day he would make settlement, but that he failed to make settlement and refused to tell her where the bonds were.
The court further found that Maude Harper, a daughter of said James F. Grantham, on a number of times, on behalf of her father, requested the return of said bonds from Charles M. McCabe but that he refused to do so; that on January 22, 1932, said McCabe delivered to said Maude Harper a written statement in the following words and figures:
The court further found that the $3,333.33 specified in said written instrument was the par value of one-third interest in said coupon bonds amounting to $11,000.
The court further found that said McCabe paid to said James F. Grantham each year up to September 15, 1928, the interest due on said coupon bonds, and that said interest due thereafter on said bonds has not been paid to him or to the administratrix of his estate by any person, and that said coupon bonds or any of them have ever been returned to said James F. Grantham during his lifetime nor to the administratrix of his estate by anyone.
The court further found that said Charles M. McCabe held the bonds aggregating $11,000 in par value in trust for James F. Grantham in the latter's lifetime and continued to hold the same in trust for the estate of said Grantham following his death. That said McCabe, while holding said bonds in trust, converted the same to his own use, commingled the proceeds thereof with his individual assets and property, and thereby enhanced the value of his assets and property to the extent of the par value of said bonds and the interest accruing thereon after the last payment of interest thereon to said Grantham as herein found.
That after the death of said Grantham, said McCabe paid, on the 20th day of December 1930, the funeral expenses of said Grantham to the extent and in the sum of $514.50; that the estate of said Charles M. McCabe had been enhanced in value to the extent of the net proceeds of said bonds and that said McCabe concealed from said Grantham in his lifetime and from Ida Grantham, administratrix of his estate, the fact that he had diverted said bonds and commingled the proceeds with his own assets.
That said Charles M. McCabe in his lifetime, and the executors of his will, hold the proceeds of the $11,000 par value government bonds and the net accruals thereon in trust for the benefit of Ida Grantham, administratrix of the estate of Charles F. Grantham, and such proceeds are in equity the assets of the estate of said McCabe and all charged with a lien as a preference to the extent of said claim.
The court further found that said Charles M. McCabe never at any time during his lifetime returned said coupon bonds or any of them to said James F. Grantham and that the executors of the will of said McCabe nor either of them has returned said coupon bonds or any of them to the...
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