Richter v. Richter (In re Richter's Will)
| Decision Date | 20 January 1931 |
| Docket Number | No. 40460.,40460. |
| Citation | 212 Iowa 38,234 N.W. 285 |
| Parties | IN RE RICHTER'S WILL. RICHTER ET AL. v. RICHTER (RICHTER, INTERVENER). |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Scott County; W. R. Maines, Judge.
An action to fix the value of certain stock and to require the executrix, upon the payment of such value as fixed by the court, to deliver the same to the plaintiffs. A demurrer to the applicants' petition was sustained, and the executrix appeals.
Affirmed.
John C. Higgins, of Davenport, for appellant.
Thuenen & Thuenen, of Davenport, for appellees.
Edward Richter died March 5, 1929, and on April 6, 1929, an order was entered admitting his will to probate. The material parts of the will, so far as this case is concerned, are:
“Know all men by these presents that we, Edward Richter and Clara Richter, husband and wife, County of Scott, State of Iowa, do hereby make, publish and declare the following as and for our joint last will and testament, hereby revoking any and all wills and codicils by either of us at any time heretofore made:”
Item 1 provides for the payment of all just debts.
Item 2 provides for a trust of $5,000 for the education of two sons of the makers of the will, and, after the completion of such education, the balance of the trust fund is to revert to the survivor under the will “to be his or hers absolutely and forever.”
Item 3 reads as follows: “We give, devise and bequeath all the rest, residue and remainder of our respective estates to the survivor of us, to have and to hold the same in his or her own name and right forever.”
Item 4: “It is the will of each of us and we each do hereby direct that any shares of the capital stock of T. Richter's Sons Inc., owned by either of us at the time of our death, may be purchased by Carl Richter and Henry Richter, brothers of the undersigned, Edward Richter, at the book value of said stock at the time of said purchase and the said Carl Richter and Henry Richter shall have the privilege of purchasing said stock from the estate of either of us at any time within one year from the date of the will of either of us is probated.”
Item 5 provides for the appointment of the surviving executor or executrix as the case may be without bond.
The claimants, Henry Richter and Carl Richter, filed their petition in probate court alleging the above facts and further stating that the outstanding capital stock of said corporation at the time of the death of Edward Richter was 856 shares at a par value of $100 per share, of which Edward Richter was the owner at the time of his death of 256 1/4 shares; and further alleging: “That on or about May 1, 1929, these petitioners elected to purchase the stock owned by said Edward Richter at the time of his death as provided by said will and offered to purchase said stock at the book value of said stock at the time of said offer of purchase, and tendered to Clara Richter, executrix, the sum of $106.25 per share for said stock, said sum being the book value thereof at the time of said offer to purchase.”
Attached to said petition as an exhibit is a statement of said corporation showing the assets, liabilities, and surplus thereof.
They further allege in their petition that Clara Richter, executrix, continues to refuse to carry out the provisions of said will and refuses to sell said stock to the petitioners, and that the petitioners are ready, willing, and desirous of purchasing said stock at the book value thereof as of the date of said offer to purchase. The prayer is that the court fix and determine the book value of said stock on May 1, 1929, and that the executrix be required to carry out the provisions of the will of Edward Richter and transfer said stock to the petitioners on the payment of the book value of said stock as fixed and determined by the court.
This petition was attacked by demurrer which was overruled. The parties stood on the ruling of the court and refused to plead further, and judgment was entered as prayed in the petition fixing the value of the share of stock at $107.22 each, and ordering the executrix, on the payment of the same, to transfer the same to the petitioners.
[1] The first question raised under the demurrer is the petitioners' allegation that they offered to purchase and tendered to the executrix the sum of $106.25 per share for said stock, said sum being the book value thereof at the time of said offer to purchase, but the statement of assets and liabilities of the company, as attached to the petition, shows that the book value of said stock at the time was $107.22. We have the statement before us, and among the liabilities shown are:
+------------------------------------+
¦Capital Stock, Preferred,¦$58,000.00¦
+-------------------------+----------¦
¦Capital stock, Common, ¦85,600.00 ¦
+-------------------------+----------¦
¦Surplus ¦6,181.20 ¦
+------------------------------------+
Appellant reaches her conclusion as to the value of this stock at $107.22 per share by assuming the common stock to be worth $85,600, to which she adds the surplus of $6,181.20, making a total of $91,781.20, and dividing this by the total shares of common stock, to wit, 856, she obtains a result of $107.22. She says, therefore, that the petition on its face shows that the value of this stock was $107.22. The mathematical calculation is correct, but the means and method by which this resultwas obtained do not seem to be warranted under the record. We have no means of knowing whether this surplus of $6,181.20 is to be credited wholly to the common, or whether it is to be apportioned between the preferred and the common stock, or whether the surplus should be credited wholly to the preferred stock. The articles of incorporation and the by-laws are not before us, and we therefore have not the right to say where this surplus shall be credited in determining the value of the common stock. This matter would probably be made clear on the trial of the case, but we take the record as we find it, and cannot say that the surplus should be credited wholly to the common stock and thereby reach the conclusion that the value of the common stock was $107.22 per share.
The decisions of the various courts seem to be somewhat confusing in determining just what this phrase “book value” means as will be discovered in the following cases: Gurley v. Woodbury, 177 N. C. 70, 97 S. E. 754;Elhard v. Rott, 36 N. D. 221, 162 N. W. 302;Jennemann v. Bucher, 186 Mo. App. 179, 171 S. W. 613;Succession of Warren, 162 La. 649, 110 So. 891;Cabble v. Cabble, 111 App. Div. 426, 97 N. Y. S. 773;Lane v. Barnard, 103 Misc. Rep. 707, 170 N. Y. S. 946.
[2] Suffice to say, we cannot reach a conclusion from the statement before us that the book value of this stock was $107.22 per share as claimed by the appellant. The finding and judgment of the court, having been entered after the appellant stood on the adverse ruling on the demurrer, cannot be considered by us in determining the correctness of the court's ruling on the demurrer.
II. The next question raised by the demurrer grows out of the construction of the will. It will be noted from item 3 of the will that Mrs. Richter is given, devised, and bequeathed “all the rest, residue and remainder of our respective estates * * * to have and to hold the same in * * * her own name and right forever.”
Item 4...
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