Warner v. Keiser
| Decision Date | 11 August 1931 |
| Docket Number | 13,982 |
| Citation | 177 N.E. 369,93 Ind.App. 547 |
| Parties | WARNER ET AL., ADMINISTRATORS, v. KEISER ET AL. EXECUTORS |
| Court | Indiana Appellate Court |
Rehearing denied October 30, 1931.
Transfer denied December 17, 1931.
From Delaware Circuit Court; Will M. Sparks, Special Judge.
Action by Everett Warner and another as administrators de bonis non with the will annexed of the estate of Joel M. Maring deceased, against George E. Keiser and another as executors of the will of Grace K. Maring. From a judgment for defendants, the plaintiffs appealed.
Affirmed.
Roy W. Clark, for appellants.
McClellan & Hensel and Morris L. Johnston, for appellees.
The appellants, as administrators de bonis non with the will annexed of the estate of Joel M. Maring, deceased, filed what they denominated a "petition" in the court below, making the appellees, the executors of the estate of Grace K. Maring, deceased, defendants thereto, in which they sought an order requiring the appellees, as such executors to assign and deliver to appellants certain shares of stock; to account for and pay over certain dividends received or to be received upon said stock, and for such other orders as they might be entitled to in the premises. To this petition the appellees filed a demurrer for want of facts, which was sustained. Appellants refused to plead further, and judgment was rendered against them. From this judgment, appellants have appealed, assigning as error that the court erred in sustaining the demurrer of appellees to appellants' complaint.
The facts alleged in the petition, omitting the formal part thereof, were substantially as follows: On January 21, 1922, Joel M. Maring was the owner of 3,412 shares of common stock, of the par value of $ 100 per share, in the Western Brick Company, a corporation organized under the laws of the State of Illinois, with its principal office in the city of Danville, Illinois; this stock and the ownership thereof were represented and evidenced by stock certificate No. 1 of said company, issued in the name of and held by Joel M. Maring; on that date, he, by assignment, indorsed on the back of the certificate of stock, transferred the same, and the stock represented thereby, to one William M. Speare; this certificate so indorsed was, on the same date, delivered by Maring to one William C. Rankin, who was then the secretary of the Western Brick Company, with instructions to Rankin to transfer the stock upon the transfer books of the company to Speare, and to have the company issue to Speare, in his name, a certificate for all the stock; at the same time, Maring also instructed Rankin that the stock thus transferred to Speare was transferred to him for the following and for no other purposes, namely: to transfer to himself, Speare, absolutely, 250 shares, to transfer to one Jacqueline Speare, absolutely, 50 shares, and to transfer to Rankin and one George E. Keiser, as trustees for Grace K. Maring, the wife of Joel M. Maring, 3,112 shares of said stock, to be held by them, under a trust agreement, the terms and conditions of which Maring had given to his attorney, and which was to be prepared by the attorney, and executed by all parties; Rankin was further instructed by Maring not to permit Speare to use the stock for any other purpose than as above specified; on the same date, Maring also advised Speare that he had assigned the stock to him, giving to Speare the same instructions regarding its disposition that had been given to Rankin as above set out.
On January 25, 1922, pursuant to the instructions given at the time of the transfer and assignment of the same, stock certificate No. 1 was canceled by the Western Brick Company and stock certificate No. 23 for 3,412 shares of the capital stock of the company was issued in the name of William M. Speare; upon the same date, pursuant to the instructions so given by Maring, Speare, by his assignment indorsed upon the back of said certificate No. 23, transferred the stock so evidenced, as follows: 250 shares to himself, 50 shares to Jacqueline Speare and 3,112 shares to William C. Rankin and George E. Keiser, trustees; and, upon the same date, in accordance with the indorsement and transfer made by Speare, the Western Brick Company issued and delivered to William M. Speare its stock certificate No. 25, for 250 shares of its capital stock, and to Jacqueline Speare, its stock certificate No. 26, for 50 shares of its capital stock.
On January 21, 1922, being the same date on which he made the assignment and transfer of stock as above set out, Joel M. Maring executed his last will and testament, which is set out in full in appellants' petition; Item 1 provides for the payment of debts; Item 2 gives to his wife, Grace K. Maring, in fee simple, his farm in Perry Township, Delaware County, Indiana, including all personal property and crops; in connection with this gift, the testator uses this language; "It is the purpose, spirit and intention of this item of my will to treat my said farm and all the equipment thereon and everything connected therewith, owned by me, as a separate entity of my estate, distinct from all the remainder of my estate, and to devise and bequeath the same to my said wife"; in the same item of his will he gave his wife, in fee simple, the residence property occupied by them in the city of Muncie, together with all wearing apparel, ornaments, jewelry, household goods, equipment and decorations; Item 3 gives to a niece a house and lot in the town of Caldwell, Ohio; Item 4 provides that, after having satisfied the terms and conditions of the preceding items of his will, his wife, Grace K. Maring, shall have a full one-half of all other property of which he died possessed, to be hers absolutely; Item 5 provides for the disposition of the property willed to his wife, in the event of her death before his; Item 6 establishes a trust fund of $ 100,000 for his sister, Elizabeth Maring, during her life; Item 7 establishes a trust fund of $ 75,000 for his sister, Mary M. Davis, during her life; Item 8 establishes a trust fund of $ 25,000 for his brother-in-law, Rev. David Davis, during his life; Item 9 provides for the occupancy by his sister, Mary M. Davis, and her husband of a house and lot in Muncie, during the life of either, and the survivor; Item 10 appoints The Merchants Trust and Savings Company, as trustee, to carry out the trust created under Items 6, 7, 8 and 9 of his will; Item 11 disposes of the remainder of his estate, including that over and above the property given in trust in Items 6, 7, 8 and 9, also including the property given in trust, after the expiration of each of the respective life estates; Item 12 contains advice as to the method of administering his estate, and Item 13 appoints his wife as executrix.
Joel M. Maring died on January 28, 1922, leaving said will in full force and effect; this will was duly admitted to probate on February 3, 1922, and Grace K. Maring, his surviving widow, named as executrix, qualified and entered upon the discharge of her duties; Joel M. Maring left no father or mother, no child or children, nor the descendants of any deceased child or children surviving him.
On or about February 2, 1922, the attorney whom Maring had instructed to prepare the trust agreement under which the 3,112 shares of stock were to be held for his wife, Grace K. Maring, presented to William M. Speare such agreement, containing the terms and conditions as specified by Joel M. Maring; this agreement was executed by William M. Speare, William C. Rankin, George E. Keiser, Grace K. Maring and Western Brick Company, as directed by Joel M. Maring.
The trust agreement so prepared and executed was in words and figures as follows: "This declaration of trust and agreement executed this 2nd day of February, 1922, by and between William M. Speare, grantor, William C. Rankin of Danville, Illinois, and George E. Keiser, of Chicago, Illinois, trustees, and Western Brick Company of Danville, Illinois, witnesseth:
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