Shapiro v. Rubens, 9421.

• Decision Date: 19 February 1948
• Docket Number: No. 9421.,9421.
• Citation: 166 F.2d 659
• Parties: SHAPIRO v. RUBENS et al.
• Court: U.S. Court of Appeals — Seventh Circuit

166 F.2d 659 (1948)

SHAPIRO v. RUBENS et al.

No. 9421.

Circuit Court of Appeals Seventh Circuit.

February 19, 1948.

COPYRIGHT MATERIAL OMITTED

Earl R. Cox, Thomas E. Garvin, Albert Ward, Palmer Ward, Scott Ging, and Gale Graber, all of Indianapolis, Ind., for appellant.

Hubert Hickam, Alan W. Boyd, Otto W. Buenting and Jerry P. Belknap, all of Indianapolis, Ind., for appellees.

Before KERNER and MINTON, Circuit Judges, and LINDLEY, District Judge.

KERNER, Circuit Judge.

Plaintiff, a citizen of California, brought this action against defendants to be declared entitled as a distributee to one-half of the estate of Harry Rubens, deceased. The case was tried by the court without a jury. The evidence was presented by a stipulation as to certain facts and by oral testimony on behalf of the parties. The trial judge made special findings of fact favorable to defendants, upon which he rendered his conclusions of law, and entered a judgment for costs against the plaintiff. To reverse the judgment plaintiff appeals.

Plaintiff is a grand niece of Samuel Rubens, deceased. Her claim is based on the acts and conduct of Harry Rubens in his relationship with his father, Samuel Rubens, in that Harry had procured the legal title to all of the property and the estate of his father because of the confidential relationship existing between them and that because of the fraud practiced by Harry and the influence gained by him over his father, Harry Rubens was converted into a trustee in favor of plaintiff for one-half of the estate of Samuel Rubens.

Samuel Rubens, at the time of his death, a prosperous, capable, and respectable citizen, was a resident of Indianapolis, Indiana. He left surviving him Harry Rubens, his son, in whom he had implicit trust and confidence. Hannah Schubach was his sister. This sister had a daughter, Flossie, who married Eli Goodman. June 28, 1918, plaintiff was born of that marriage. Shortly after her birth, Samuel Rubens took plaintiff into his home where she remained until his death. While he lived, he bestowed his affections upon her and provided for her by paying all of her living expenses, including the expense of her education, and gave her $10,000 worth of government bonds which were in his safety box at the time of his death.

There was evidence that soon after plaintiff's birth, Samuel said to plaintiff's father that he would give plaintiff an education and financial security, and that she and Harry would share alike in his estate; that in April, 1936, he said: "Harry, everything I got I am going to leave to you in trust, * * *. When I die I am leaving all of this to you, Harry, to take care of Frederica, as I have taken care of her. I want you to take care of her as a sister, and give her everything she is accustomed to, and when you die, Harry, I want you to promise me that you will give her one-half of your estate," and that Harry said: "I will promise you I will take care of her as a sister, and I will give her everything that you have given her, and when I pass away I will give her one-half of my entire estate."

Samuel Rubens died testate on June 26, 1937, leaving a will dated May 24, 1937. The contents and the circumstances under which it was executed will be presently related. Prior to the execution of his last will, and in 1924, within six years after plaintiff was taken to the home of Samuel, he executed a will by the terms of which $10,000 was bequeathed to each of his sisters and his brother, Moses; $5,000 each was bequeathed to five nephews and two nieces, one of whom was plaintiff's mother, and a trust of $5,000 was created for the benefit of plaintiff. All of the residue was left to Samuel's wife and to his son, Harry. The provisions for the plaintiff and the disposition of the residuary estate were included without change in later wills executed by Samuel Rubens in 1931, 1932 and 1933.

The record discloses that Samuel Rubens went to the Methodist Hospital on May 24, 1937 and there remained until his death; that just prior to the execution of his last will he had a conference with his attorneys at the hospital, in which he stated that his wife had died (she died May 18, 1937) and that he thought he should rewrite his will. He stated that he desired to omit the trust of $5,000 for plaintiff because he had accumulated $10,000 in government bonds for her which were in his vault. He also stated that he was not going to leave anything to his sisters or his brother except a legacy of $7,500 to one sister. He further stated that he had taken care of his family, his sisters, his brother, and other relatives for years, and would like for his son to do so, if able. His attorneys then advised him that, if he so desired, they could incorporate these matters in the will so that Harry would be obligated to take care of Samuel's relatives. He replied: "No, I don't want to do that at all. I am going to give everything to Harry. He can do whatever he pleases with it. It is his. I am not going to bind him and obligate him to do anything but I think he will do the same as I have been doing because he knows what I have been doing." His attorney then asked whether he would like to write a letter to his son to be read after his death, telling Harry what Samuel would like Harry to do, and he answered that he would.

The record also discloses that during this conference Samuel Rubens said nothing about ever having intended to make a will in favor of plaintiff, or ever having intended to give her one-half of his property, or having decided to make the particular will, because of any promises of Harry or about anything that Harry was to do with the property after his death, except that it was Harry's, and that he could do whatever he pleased with it.

Pursuant to Samuel Rubens' request the attorneys prepared a letter addressed to Harry to be delivered after Samuel's death. This letter¹ Samuel signed. It remained with the will in the safe of his attorneys until the decease of Samuel, when both documents were delivered to Harry. The will was duly probated in Marion County, Indiana. It made no mention of plaintiff. By the will Harry was named executor, and after the payment of certain specific bequests, it bequeathed and devised all the rest and residue of testator's estate to Harry Rubens, "to be his absolutely and forever." Harry Rubens, as executor, proceeded to settle the estate. His final account and report were approved, and on January 7, 1939 an order was entered closing the estate.

Harry Rubens died testate on July 27, 1945, and left surviving him Evelyn Rubens, his widow. His will was duly admitted to probate in the Probate Court of Marion County, Indiana. Defendants, Evelyn Rubens, Edgar Rogers and Indiana Trust Company, were named as executors. By the will, the testator, after a number of minor bequests, devised and bequeathed the residue of his estate in trust with Indiana Trust Company, as trustee. Among the distributions to be made from the trust are: $1,000 per month for life to his widow; $200 per month for life to plaintiff to be increased to $400 per month at anytime she shall become a widow or not be living with a husband, and after the death of plaintiff, $400 per month to be paid to her children or their descendants so long as the trust continues. The trust terminates at the death of the widow, plaintiff, Hannah Schubach, Julia Shaneman, and the children of plaintiff living at the death of the testator, and the corpus then is to be paid to the plaintiff's children born after the death of the testator and the descendants of her deceased children whether born before or after his death.

The record further discloses that in October or November, 1945 after the death of Harry Rubens, plaintiff received a copy of his will, and that commencing with the month of August, 1945, she received monthly checks for $200 each and that up to and including May, 1946 she cashed these checks, but that subsequent checks were retained by her uncashed; however, since the trial, all of the checks have been cashed and she has continued to accept and cash checks for the monthly payments up to December 5, 1947.

Before we discuss plaintiff's main contention we think it advisable to dispose of several incidental questions raised. Plaintiff says that the court erred in admitting in evidence the 1924 will and in permitting a witness to testify to the contents of the three subsequent wills of Samuel Rubens.

The argument is that the 1924 will was too remote in time; that it was not the will involved in this case; that no effort was made to produce the 1931, 1932 and 1933 wills or copies thereof; and that the testimony concerning these wills was hearsay.

In evaluating the argument that the 1924 will was too remote and that it was not the will involved in this case, we must consider the state of the case when the testimony of the witness was heard and the will was received in evidence. This we must have in mind in determining the competency of this evidence. Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285, 294, 12 S.Ct. 909, 36 L.Ed. 706. In our case, plaintiff introduced evidence going back to the time she was taken into the Rubens home. In this state of the record, evidence tending to show the actual state of Samuel Rubens' mind at about that time was admissible. Mutual Life Ins. Co. v. Hillmon, supra, 145 U.S. at pages 295, 296, 12 S.Ct. at pages 912, 913, 36 L.Ed. 706. The 1924 will and the testimony of the witness concerning the contents of the subsequent wills, constituted circumstances which were proper to be considered in connection with the subsequent conduct and actions of Samuel Rubens. Henline v. Jacoby, 62 Ind. 298, 300. There was no error in admitting the will.

As to the argument that the testimony concerning the contents of the three subsequent wills was hearsay, it will be enough to say that the record discloses that no such objection was made before the trial court. Moreover, a proper...