Richardson v. City Trust Co.

• Court: U.S. Court of Appeals — Seventh Circuit
• Writing for the Court: ALSCHULER, EVANS, and PAGE, Circuit
• Citation: Richardson v. City Trust Co., 27 F.2d 35 (7th Cir. 1928)
• Decision Date: 19 June 1928
• Docket Number: No. 3996.,3996.
• Parties: RICHARDSON et al. v. CITY TRUST CO. et al.

27 F.2d 35 (1928)

RICHARDSON et al. v. CITY TRUST CO. et al.

No. 3996.

Circuit Court of Appeals, Seventh Circuit.

June 19, 1928.

Robert A. Black, of Cincinnati, Ohio., for appellants.

James A. Ross, of Indianapolis, Ind., for appellees.

Before ALSCHULER, EVANS, and PAGE, Circuit Judges.

PAGE, Circuit Judge.

On the ground that it disclosed no cause of action, the District Court, on motion under equity rule 29, dismissed appellants' bill, to enjoin the City Trust Company and to determine the rights of the parties to certain property in Indianapolis, Ind.

John S. Lazarus, of Indianapolis, by a proper instrument, vested in himself and wife, by the entirety, certain real estate, under a verbal agreement that each should make a will, so that the estate would, at the death of the survivor of them, vest in his four children, only three of whom were the children of his wife, Ella Lazarus. Lazarus and his wife conveyed a portion of the real estate in question to John S. Lazarus Company, a corporation, and each took certain shares of the capital stock of said company, in consideration thereof.

In 1914, John S. and Ella Lazarus, his wife, entered into the written agreement, called trust agreement, following:

"This agreement, entered into in duplicate by and between John S. Lazarus and Ella Lazarus, husband and wife, of Indianapolis, Indiana, this first day of July, 1914, witnesseth:

"That whereas, said John S. Lazarus was the sole owner of fee simple title of certain real estate which he caused by proper conveyance to be transferred to himself and wife as tenants by entirety, in consideration and upon the agreement that the survivor should by will devise all of said real estate as well as all other property real and personal remaining at their death to Minnie H. Richardson, Jessie M. Devine, George Lazarus and Roy G. Lazarus, the four children of the said John S. Lazarus (the last three named being the children born to the said parties hereto), in equal proportions or to the descendants of such of the above-named children, per stirpes; and

"Whereas, the said parties hereto conveyed certain of said real estate so transferred to them as above stated to the John S. Lazarus Company, a corporation organized under the laws of the state of Indiana, each of the parties hereto taking certain shares of the capital stock of said company for the consideration of said real estate so conveyed; and

"Whereas, it is the purpose and intention of the parties hereto that all of their property held jointly or as tenants by entirety as well as all other property held individually, including personal property and the shares of stock in the said John S. Lazarus Company coming to the parties hereto on account of the conveyances to the said company, be at the death of the survivor, transferred or devised equally to the said four children of the said John S. Lazarus or to the descendants of such children as are not living, per stirpes; and,

"Whereas, the said John S. Lazarus has executed his will and testament of even date herewith devising all of the real and personal estate of which he may die seized and including all of the shares owned by him of the capital stock of the said John S. Lazarus Company in trust for the use and enjoyment of the said Ella Lazarus if she should survive him, for and during her natural life, and at her death equally to his four children or the descendants of such as may not be then living, per stirpes:

"Now therefore, pursuant to the agreement and for the consideration of the real estate so conveyed to the said Ella Lazarus and for the shares of stock in the John S. Lazarus Company growing out of said transactions and of the benefits derived and to be derived, the said Ella Lazarus does hereby agree in the event of her surviving her said husband to abide by the provisions made for her in the said last will and testament of her said husband and in any event to especially transfer or convey or by her last will and testament, whether she survive her said husband or not, devise all of the real estate so received by her from her said husband as above stated, together with all of the shares of stock in the John S. Lazarus Company, equally to the four children of the said John S. Lazarus or to the descendants of such as may not then be living at the time of her death, per stirpes.

"The said John S. Lazarus also agrees, if he survives said wife, to transfer, convey, or include in his last will and testament all of the real estate and personal property received from his said wife equally to the four children or to the descendants of such as may not then be living, per stirpes.

"The said Ella Lazarus does hereby state that she read the last will and testament of her said husband bearing even date herewith, and that she is familiar with the terms and conditions thereof, and she has entered into this agreement without fear or coercion of her husband and of her own free will and in conformity with the agreement and the promise when said real estate and personal property was received by her from her said husband as above set forth. The parties hereto do mutually agree that the property so held by them as tenants in entirety or the personal property coming to them from the transfer thereof to the said John S. Lazarus Company is by them held in trust for the four children or their descendants of the said John S. Lazarus, and that the essence of this contract shall be for the equal benefit of the said four children as hereinabove named.

"In witness whereof, the parties hereto have set their hands and seals the day and year first above written.

"Signed John S. Lazarus. L. S "Signed Ella Lazarus. L. S."

January 30, 1918, John S. Lazarus died testate, survived by the individual parties to this suit as his widow, children, and only heirs at law.

December 4, 1919, the individual parties hereto entered into a written agreement, whereby Ella Lazarus confirmed and ratified the declaration of trust in the trust agreement and as a part thereof the children agreed that they would execute the necessary instruments to complete, clear of incumbrance, two apartment buildings theretofore commenced by the widow on a part of the property here in question. That agreement, together with the trust agreement, was recorded on January 2, 1920.

Ella G. Lazarus and City Trust Company entered into an agreement, reciting as a premise that Ella G. Lazarus owned the real estate in question...