Miller's Estate, In re

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtThe purpose of this section is to protect the interests of the remaindermen. In the first clause
Citation121 N.E.2d 26,95 Ohio App. 457
Parties, 54 O.O. 98 In re MILLER'S ESTATE. BRANDON v. CITY NAT. BANK & TRUST CO. et al.
Decision Date20 March 1953

Page 457

95 Ohio App. 457
121 N.E.2d 26, 54 O.O. 98
Court of Appeals of Ohio, Franklin County.
March 20, 1953.

[121 N.E.2d 28] Syllabus by the Court.

1. Plenary power is full, complete and unlimited power.

2. That portion of Section 8, Article IV, of the Ohio Constitution, which provides 'The Probate Court shall have jurisdiction in probate and testamentary matters, the appointment of administrators and guardians, the settlement of the accounts of executors, administrators and guardians * * *,' confers plenary jurisdiction on the Probate Court, and such jurisdiction may be implemented, but cannot be limited or abridged, by statute.

3. That portion of Section 10501-53, General Code, which provides, 'The Probate Court shall have plenary power at law and in equity fully to dispose of any matter properly before the court, unless the power is expressly otherwise limited or denied by statute,' merely extends that court's plenary power to matters concerning which its jurisdiction is derived from statute.

4. Section 10509-185, General Code, the purpose of which is to protect the interests of remaindermen under wills, contains two distinct remedies, either of which the court, in a proper case, may apply; the provisions of that section do not operate as a limitation on the plenary jurisdiction conferred on the Probate Court by Section 8, Article IV of the Constitution, and Section 10501-53, General Code.

5. That portion of Section 10509-185, General Code, which provides, '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

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property as remainderman, the court, unless such last will and testament otherwise provides shall have authority to deliver such personal property to the person having the limited estate, with or without bond, as the court may determine;' applies generally to situations where the court has nothing before it except the provisions of the will and where no special circumstance appears showing the property to be in jeopardy.

6. That portion of Section 10509-185, General Code, which provides, inter alia, 'or the court may in its discretion 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 * * *,' applies specifically to cases in which, upon hearing, it is made to appear that the property is in danger of being lost.

7. Where a testator bequeathed a portion of the residue of his estate to his [121 N.E.2d 29] daughter for life without power to consume and at her death in fee simple to the life tenant's children or their issue, and provided that the life tenant should have full power and authority to manage, control, invest and reinvest, sell, convey and exchange the property held by her as life tenant, and to exercise other beneficial rights as she deemed proper 'notwithstanding any statute or rule of law or equity to the contrary,' and provided further 'I direct that my property shall not be held by my executors or by any trustee * * * for the benefit of any life tenant, but that my executors shall deliver to the respective life tenants aforesaid the property which is allocated to their shares * * * and the court shall not have authority to direct otherwise,' and where, in a proceeding by the life tenant to secure control of the property which consists of valuable securities, it is disclosed that the life tenant and remaindermen are nonresidents of Ohio; that the assets, if entrusted to the life tenant, will be removed from the jurisdiction of the court; that the life tenant has recently squandered a large fortune; and that there is a strong possibility that the property will be squandered by the life tenant if entrusted to her, and thus lost to the remaindermen named in the will, the Probate Court, in the exercise of its plenary jurisdiction and in furtherance of the testator's intention that both the life tenant and the remaindermen shall be benefitted by the distribution of the property and to protect the interests of the remaindermen, may order that the property be distributed to a trustee to be held and controlled

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for the benefit of the life tenant and the remaindermen named in the will, even though, under such order, the life tenant is denied the right to manage and control such property as provided in the will.

Bruce A. Lowman and Robert E. Patterson, Columbus, for appellant.

Webb I. Vorys, Columbus, for appellees Edward W. Miller and Betty E. Miller executors.

Key, Butler & Harrison, Columbus, for appellee Roberta M. Hammond.

John H. Summers, Columbus, for appellees Joseph W. Brandon and Richard M. Brandon.

Harrison W. Smith and Ithamar D. Weed, Columbus, for appellees Betty Ann Miller, Patricia Joan Miller and Nancy Louise Miller.

WISEMAN, Presiding Judge.

This is an appeal on questions of law from a judgment of the Probate Court of Franklin County.

The testator, Frederick A. Miller, bequeathed the residue of his estate in shares to his wife, his son, and his daughter, Frances Ann Miller, for life. The widow having elected to take under the law, the share of the daughter amounted to one-third of the assets available for distribution, and was of the approximate value of $450,000. The testator directed that at the death of his daughter, the share bequeathed to her for life should be divided among her children or their issue in fee simple.

The administration of the estate nearing completion, the daughter filed an application for distribution of her share. The executors instituted a proceeding in the nature of an action for a declaratory judgment,

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concerning matters affecting distribution. The two proceedings were consolidated and evidence was presented. The order from which this appeal was taken directed that the daughter's share was to be paid by the executors to a trustee, to be held and managed for the benefit of the daughter during her life and to be distributed to the remaindermen at her death. From this order, the daughter took this appeal.

The order of the Probate Court was based on its findings of fact and conclusions of law, which are incorporated in the order. No bill of exceptions has been filed. The trial court found that the testator, Frederick A. Miller, died in 1948, at which time the daughter was indebted to the decedent in [121 N.E.2d 30] the sum of $58,620.64; that in 1945, she received cash and stock of the value of $215,323.58 from the estate of her grandfather; that the daughter and her husband received other moneys during the five succeeding years; that the total amount received from 1945 to 1950 aggregated $453,866.95; and that an itemized statement filed with the court by the daughter as of January 1, 1951, together with her testimony, shows that as of that date the net value of her estate was $41,524. This amount did not include the above mentioned indebtedness to the instant estate. In 1945, the daughter moved with her family to the state of California, where she has since resided and where she intends to maintain a permanent domicile. The trial court found that in February or the early part of March 1948 the testator learned of the financial situation of the daughter, and that, thereafter, the testator contemplated making a change in his will, which was never consummated, the testator having been stricken with illness on March 22, 1948, from which he died on May 6, 1948.

Thus, it appears from the findings of fact that the appellant (daughter) within a few years consumed the inheritance which she received from her grandfather's

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estate, and, also, approximately $102,000 paid to her during the years 1948, 1949 and 1950, as income from her father's estate as well as other moneys, the total amount aggregating over $470,000, and that on the date of her father's death she was insolvent.

On the basis of this factual situation, the trial court concluded:

'Frances Ann Miller Brandon has not demonstrated her ability to handle an estate of the character and size of which she is the life beneficiary, but on the contrary has demonstrated her inability to handle an estate of such size as life tenant; and delivery of possession to her of her share as life tenant would imperil the integrity of that share and result in severe, if not total, loss to the minor remaindermen and severe injury to the life tenant.

'The court therefore concludes that, in the exercise of its plenary power and duties in respect to the administration and distribution of this estate, the competency of the life tenant of each share must be considered in order to safeguard all interests created by the decedent's will; and with that obligation it has a responsibility to the minor remaindermen and contingent remaindermen to safeguard the corpus of the shares to the life tenants until the delivery of each share of corpus to the ultimate beneficiaries.

'The court further concludes that the application of Frances Ann Miller Brandon for immediate delivery to her as life tenant of her share of the decedent's estate should be denied; and, in the exercise of the court's plenary power, in order to safeguard the corpus of the estate devised to the children and issue of Frances Ann Miller Brandon until the date of its delivery to them, and in order to protect their interests, the corpus of the estate in which Frances Ann Miller Brandon has an interest as life tenant should be distributed by the executors to a trustee, for the benefit

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of Frances Ann Miller Brandon during her life and the persons who will be entitled to the ownership thereof at her death.'

The court decreed and ordered as follows:

'It is therefore decreed and ordered that the application of Frances Ann Miller Brandon for an order directing immediate distribution and delivery to her of such part of...

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2 cases
  • Kyle's Estate, In re
    • United States
    • United States Court of Appeals (Ohio)
    • June 6, 1958
    ...the remaindermen. Section 8, Article IV, Constitution; Section 2101.24, Revised Code. As to plenary power see In re Estate of Miller, 95 Ohio App. 457, 121 N.E.2d 26, affirmed in 160 Ohio St. 529, 117 N.E.2d 598, 46 A.L.R.2d The various cases cited by appellant to the effect that a life ten......
  • Guardianship of Kelley, In re
    • United States
    • United States Court of Appeals (Ohio)
    • February 29, 1964
    ...of its jurisdiction may be prescribed by statute. In re Estate of Shafer, 77 Ohio App. 105, 62 N.E.2d 902; and In re Estate of Miller, 95 Ohio App. 457, 121 N.E.2d 26, affirmed in 160 Ohio St. 529, 117 N.E.2d 598, 46 A.L.R.2d As a part of the procedure respecting the appointment of guardian......

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