Tuckerman v. Currier

• Decision Date: 09 December 1912
• Parties: TUCKERMAN et al. v. CURRIER et al.
• Court: Colorado Supreme Court

129 P. 210

54 Colo. 25

TUCKERMAN et al. v. CURRIER et al.

Supreme Court of Colorado, En Banc.

December 9, 1912

On Extension of Opinion, January 6, 1913.

Appeal from District Court, Weld County; Louis W. Cunningham, Judge.

Suit by Mary B. Currier and others against James Tuckerman and another to compel defendants' removal as executors and trustees of the estate of Warren Currier, deceased, for the construction of the will, and for other relief. From a decree in favor of complainants, defendants appeal. Reversed and remanded.

James W. McCreery, of Greeley, for appellants.

Charles D. Todd, of Greeley, R. T. McNeal, and Charles R. Brock, of Denver, for appellees.

HILL J.

The pleadings as well as the evidence in this case are voluminous. In disposing of it, in addition to hearing oral arguments, we have read and considered over 6,500 folios of record, in excess of 500 pages of printed briefs, and have considered the questions involved in over 550 cases cited claimed to support the different contentions of counsel. Owing to the uncertainty of the title to such a large amount of property and the importance of the other questions raised we are not prepared to say that the greater part of counsel's efforts was not justified; but, when the extent of such an amount of labor placed upon this court is realized, it is regrettable that many thoughtless people (including some members of the profession), who criticise appellate courts for their apparent delay in the number of such cases disposed of, are not familiar with these conditions.

We shall not attempt to set forth even the substance of all the issues, but only such as are controlling of the principal contentions. The record discloses, without contradiction, that upon July 25, 1892, Judge Warren Currier died, leaving surviving his widow (Lydia M.), two sons (George W. and Henry F.), their wives, and certain grandchildren (the sons and daughters of George W. and Henry F.). The deceased was possessed of a large estate, real and personal. He left a will which provides:

First, for the payment of debts.

Second, devises certain personal property to his wife.

Third, gives to his son George the use for life of the Greeley homestead, on certain conditions.

Fourth, gives to his son Henry the use for life (rent free) of certain real estate.

Fifth, provides for the adjustment of certain advancements made by deceased to the above sons.

The sixth, seventh, eighth, and a part of the tenth paragraphs, which are the cause of these contentions, read as follows:

'(6) I give, devise and bequeath all the rest and residue of my estate, real, personal or mixed, and wherever situated, to my said executors, to wit, Bruce F. Johnson and Charles H. Wheeler, both of Greeley, and to the survivor of them and their successors to hold, manage and dispose of in trust for the uses and purposes following, to wit:

'(a) Two thousand dollars on the net annual income therefrom to be collected by my said executors and paid over annually as an annuity to my said wife, in quarter yearly installments of $500 each during her natural life, the same to be accepted by her in lieu of dower and in full of all claims upon my estate not hereinbefore specified and provided for; all such payments to be made upon her separate personal receipt and not otherwise.

'(b) All the rest and residue of the total net annual profit and income that shall be derived from my said estate shall be collected by my said executors and by them annually paid over in equal parts to my two sons (they being my only surviving children), to wit, said George W. Currier and Henry F. Currier, during their natural lives, one-half thereof to each and upon the separate personal receipt of each. In case of the death of either the share of the other (he still surviving) shall continue and be paid over to him during his natural life. But the share of the one deceased shall from the time of his death be distributed and paid over to his widow if then surviving, and to his then surviving children in equal parts to each, share and share alike; and such payments shall continue during the natural life of my son then surviving. The annual payments aforesaid shall be made in quarter yearly installments and upon the separate personal receipt of the party entitled to receive the same, and not otherwise.

'(c) If either of my said sons shall die without leaving issue surviving him, the share of the annual income from my said estate of such deceased son shall go to and vest in and be paid over to his surviving brother in quarter yearly installments as aforesaid. If either of my said sons shall die leaving issue surriving him, such issue shall take the part and share of his or her father, and where there are several surviving children they shall share and share alike in said net annual income.

'(7) It is my will that my said executors shall carefully collect and take care of said estate and that they shall by proper sale or sales thereof convert such parts of it into cash as they shall judge to be for the best interest of my said wife and sons and other beneficiaries herein named or described, and to that end I give to said executors and to the survivors of them and to their successors, full power and authority to sell and convey said estate or any part thereof in fee simple, and to make all proper deeds and other conveyances thereof, reinvesting the proceeds of such sale or sales in such productive securities or improved productive real estate, as they may judge to be safe and remunerative, having primary reference to the safety thereof. I enjoin upon my said executors to distribute fully and carefully the total net annual income and increment of my estate to the persons and in the time and manner herein provided and so as to avoid the accumulation in their hands of property and assets in excess of the total value of the property and assets that shall originally come to them under this will.

'(8) Upon the death of both of my said sons, said George and Henry, said executors and the survivor of them and their successors are hereby empowered and directed to convey by proper deeds and other conveyances and in fee simple any and all estate, real, personal or mixed which shall then remain in their hands or subject to their control under the provisions thereof to the heirs at law of my said sons George and Henry respectively, the children of each taking one half of said estate per stirpes in absolute ownership and in exclusion of all other persons; and I hereby give and bequeath to said children all the said estate so then remaining in the hands of my said executors, each family of children taking an inheritable estate therein in fee as the heirs at law of my said sons respectively, and taking the same per stirpes and not per capita, each family of children taking one-half thereof.'

'(10) It is my desire that said board of executors shall be continued until the purposes of this will are fully accomplished, and the trusts herein created are fully executed; and it is my will that any vacancy arising in said board shall on the application of any beneficiary herein named be filled by the appointment of the county court of said Weld county, Colorado, meaning the court in said county which shall have at the time jurisdiction of probate matters in Weld county.'

The closing, unnumbered paragraph in the will reads: 'I hereby appoint Bruce F. Johnson and Charles H. Wheeler of said Greeley in said county of Weld to be the executors of this my last will and testament.'

The will was probated September 6, 1892, in the county court of Weld county, and the executors named in the will, Bruce F. Johnson and Charles H. Wheeler, were given letters testamentary thereon. They qualified September 14th, same year, and acted as the executors from that date until May 23, 1893, when Charles H. Wheeler tendered his resignation, which was accepted by the county court and an order made appointing Horace G. Clark as his successor. Johnson and Clark continued to act until January, 1897, when they tendered their resignations to the county court, which, on January 30, 1897, made an order accepting the resignations and appointing the plaintiffs in error, James Tuckerman and William Mayher, as their successors. These last-named appointees have continued to act as such executors, and by virtue of such official capacity have also performed the duties of trustees as provided for by the will, from the date of their appointment until the present time.

This action was insituted by the grandchildren of Warren Currier the residuary legatees of the principal estate, against all former executors, Johnson, Wheeler, Clark, Tuckerman, Mayher, the two sons of the deceased (George W. and Henry F.), their wives, and the widow (Lydia M. Currier). The complaint charges numerous acts of maladministration and breach of trust against all of the five persons who had acted as executors and performed the duties of trustees. It charges fraud, mismanagement, and misconduct whereby it is alleged that the principal estate sustained great losses and was then being depleted by the fraudulent and illegal acts of its alleged trustees, in some of which the life beneficiaries George and Henry Currier are alleged to be parties. It denied the right and jurisdiction of the county court to appoint subsequent executors to fill vacancies caused by the resignation of Johnson and Wheeler, or its jurisdiction to recognize the rights of such persons to perform the duties of trustees, or to in any particular supervise the administration of the trust created by the will. It alleges that the title to the property was still in Johnson and Wheeler as trustees. It prays for a construction of the will to include a...