Rogers v. Girard Trust Co.
| Decision Date | 07 February 1947 |
| Docket Number | No. 10306.,10306. |
| Citation | 159 F.2d 239 |
| Parties | ROGERS v. GIRARD TRUST CO. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Russell Saxby, of Columbus, Ohio (Benoy, Saxby & Sebastian and Cecile J. Shapiro, all of Columbus, Ohio, on the brief), for appellant.
James Elder, of Cincinnati, Ohio (Taft, Stettinius & Hollister, John W. Hudson, and James L. Elder, all of Cincinnati, Ohio, on the brief), for appellee.
Before HICKS, SIMONS and ALLEN, Circuit Judges.
The appellant, a resident of Columbus, Ohio, brought an action for money damages in Ohio against the appellee, a trust company resident of Pennsylvania, and the sole surviving successor trustee of a testamentary trust under which the appellant is one of the beneficiaries.
Theodore G. Wormley, a resident of Philadelphia County, Pennsylvania, died January 3, 1897, leaving a will, the pertinent portions of which are as follows:
"Fourth, I give, devise and bequeath all the rest, residue and remainder of my estate, real, personal and mixed in possession and in expectancy whatsoever and wheresoever unto my friend P. Webster Huntington — in trust nevertheless to collect, receive and recover the rents, income and profits thereof, and to invest and reinvest in good securities the principal thereof and to pay one third of the net income thereof unto each one of the following named persons: to my wife Anne E. Wormley, to my daughter Mary W. Marshall wife of John Marshall and to my daughter T. Isabella Wormley during their respective natural lives for their respective use and free from liability for the debts contracts or engagements of themselves severally or of any other person or persons and at and after the decease of them my said wife and daughters severally and successively then in trust to apply and dispose of the capital and all unexpended income of each one of the said trust shares or thirds for the use and behoof of the child or children of said decedent living at her death and the issue of her child or children who may have died in her life time, in equal shares absolutely and in fee but so however that the issue of any such deceased child shall stand in the place of and only take the same share which such decedent would have taken if living, any portion however which may thus accrue from the trust share of my wife to either of my daughters, shall go to augment the trust shares of my said daughters and be governed by the same limitations and provisions as are above made to apply to their original trust shares."
Mary Marshall, beneficiary under the trust together with Anne E. Wormley and appellant, was appointed co-trustee of the estate. She died in 1943, and on February 25, 1944, the appellee, which had been appointed co-trustee in 1899, filed its account of administration of the trust with the Orphans Court of Philadelphia County, Pennsylvania. The petition filed with the account contained an application for distribution of one-half of the corpus of the trust. Notice of the filing of the account was duly published in newspapers of general circulation, and was mailed to the appellant in care of Mrs. M. H. Lerch, 1240 Bryden Road, Columbus, Ohio, but was not received by the appellant.
Appellant's daughter, Juliet Rogers Brady, was present in the Orphans Court, Philadelphia, Pennsylvania, at the hearing of the audit of the account on April 6, 1944, and within a few days thereafter personally notified appellant that the appellee had requested the court to approve the distribution of one-half of the corpus of the trust. The appellant protested against this distribution in a letter dated April 15, 1944, addressed to the appellee but took no steps to intervene in the proceedings. The account was confirmed absolutely on Oct. 27, 1944, and the distribution ordered. Appellant contends that this action violates the terms of the will and that she is entitled during the remaining portion of her life to receive the entire income from the estate.
On August 18, 1945, the appellant filed a petition in the federal court in Ohio, where the appellee maintains an office, charging the appellee with negligence and with deliberate and willful acts of malfeasance in office which have resulted in depriving appellant of income due her, claiming damages for various specific mismanagements of estate property and breaches of trust, and claiming that the trustee, in violation of the terms of the trust, asked for a division of the estate after the death of Mary Marshall, and by its assurances to appellant caused her to fail to protest against the distribution in the Orphans Court. No answer was filed, but the appellee moved to dismiss the complaint on the ground that the Orphans Court had already assumed jurisdiction of the subject matter. Before the court had ruled upon this motion appellee moved for summary judgment on the ground that no genuine issue existed as to any material fact, and that it was entitled to a judgment as matter of law. Appellee later withdrew its motion to dismiss, and appellant moved for leave to file an amended complaint. The District Court denied the motion for leave to file the amended complaint, and subsequently sustained appellee's motion for summary judgment. No findings of fact or conclusions of law were made by the District Court.
Appellant contends that the District Court erred in refusing permission to file the amended complaint and in granting the summary judgment. Each of these contentions must be sustained.
As the appellee had filed no responsive pleading to the complaint, appellant was entitled to amend as a matter of course. Rule 15(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. Leave of the District Court was not necessary, but it was error to deny the leave when asked. It was also error to grant the motion for summary judgment. The procedure for summary judgment is set forth in Rule 56 of the Rules of Civil Procedure, paragraph (c), the pertinent part of which reads as follows:
"The judgment sought shall be...
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