Wenbert v. Lincoln Nat. Bank & Trust Co.

• Decision Date: 12 June 1945
• Docket Number: 17346.
• Citation: 61 N.E.2d 466,116 Ind.App. 31
• Court: Indiana Appellate Court
• Parties: WENBERT v. LINCOLN NAT. BANK & TRUST CO. et al.

61 N.E.2d 466

116 Ind.App. 31

WENBERT v. LINCOLN NAT. BANK & TRUST CO. et al.

No. 17346.

Appellate Court of Indiana, in Banc.

June 12, 1945

Appeal from Huntington Circuit Court; Burr Glenn, Judge.

Mountz & Mountz, of Garrett, for appellant.

Clarence R. McNabb, of Fort Wayne, for appellees.

HAMILTON Judge.

This is an appeal from a judgment rendered in a proceeding instituted by the filing of a petition by appellees for the determination of the distributive shares for each of the heirs at law of one Abe Field, deceased who died on the 20th of July, 1940, a resident of Allen County, Indiana, and to obtain an order of distribution of the personal assets constituting the surplus remaining in the hands of the administrator of the estate of said Abe Field deceased, after the payment of debts and expenses of administration. The petition was filed and the proceedings were had thereon, pursuant to the provisions of Burns R.S.1933, §§ 6-1501 to 6-1505, inclusive; Baldwin's 1934 §§ 3222 to 3226, inclusive.

The facts may be summarized as follows: Abe Field died intestate on July 20, 1940, a resident of Allen County, Indiana. His purported last will and testament, bearing the date of December 3, 1932, was admitted to probate in the Allen Superior Court, No. 2, July 20, 1940, but upon discovery in May, 1941, that the said Abe Field had born to him a legitimate child on December 29, 1932 (twenty-six days after the execution of said will), for whom no provision had been made in said purported will, the same was judicially declared revoked, as provided by Burns R.S.1933, § 7-303; Baldwin's 1934, § 3355, and the probate thereof set aside by the Allen Superior Court, No. 2, in proceedings in which all the heirs at law of the said Abe Field, deceased, were parties. Thereupon, the Lincoln National Bank and Trust Company of Fort Wayne, Indiana, was duly appointed administrator of the estate of said decedent and as such administrator proceeded to administer said estate. On July 24, 1943, the administrator of said estate filed its account in final settlement with the Allen Superior Court, No. 2, showing that it had in its hands the surplus of said estate of the value of $72,508.35 for distribution to the heirs at law of said decedent upon proof of heirship and determination of the respective rights of the several heirs to the said surplus of said estate. Hearing upon the final report of said administrator was continued, pending proof of heirship of said several heirs at law of the decedent.

Thereafter, on September 27, 1943, the Lincoln National Bank and Trust Company of Fort Wayne, as guardian of Shirley A. Field, James B. Field, and Lois Beverly Field, minor children and heirs at law of Abe Field, deceased, and Bernadine F. Zweig, Ruth F. Fruend, and Theodosia Field (now Theodosia Field Brody), adult children and heirs of said decedent, filed in the Allen Superior Court, No. 2, their petition for a determination of the distributive shares to which each of the heirs at law of Abe Field, deceased, was entitled and for an order of distribution of such shares to the respective heirs. These petitioners are the younger six of the seven children of the decedent--the remaining and oldest child being Genevieve F. Wenbert, the appellant herein. In addition to the above-named children and heirs at law, said decedent was survived by the widow, Clara Field, now Clara Field Scheff, an appellee herein.

The petition so filed as aforesaid alleged and proceeded upon the theory that each of the decedent's children was entitled to two-twenty-firsts of the balance remaining in the hands of the administrator for distribution, but that the distributive share of appellant Genevieve F. Wenbert should be charged with the reasonable value of advancements which had been made to her by the decedent during his lifetime, in April, 1937, and in April, 1938, in the total aggregate amount of $8895.

Upon issues joined the cause was submitted to the court for trial, which found the facts specially, and stated its conclusions of law thereon, favorable to appellees, and to the effect that during his lifetime the decedent had advanced to the appellant the sum of $5700, with which appellant was chargeable and which should be reckoned against her distributive share in the distribution of the net assets of said estate. Upon these conclusions of law judgment was rendered, directing distribution accordingly.

The errors relied upon for reversal are that the court erred in each conclusion of law except conclusion No. 2, which determined the rights of the widow and about which no question is presented by this appeal.

The appellant has not seen fit to include the evidence in the transcript brought to this court, and because of the fact that the appellant failed to file a motion for a new trial, no question is presented involving the sufficiency of the evidence to sustain the findings of facts. The only question presented for our consideration is whether or not the findings of facts are sufficient to support the conclusions of law.

The findings of fact which are pertinent to a consideration of the question presented are findings of facts Nos. 16, 17, 18, 19, 20, 21, 22, 23, 24, and 26, which read as follows:

'16. That the said Genevieve Field, now Genevieve Wenbert, one of the daughters of said decedent and said Clara Field, on the 28th day of April, 1937 married one Morley Wenbert.'

'17. That on April 7, 1937, said decedent purchased Two Hundred (200) shares of the common capital stock of Munsingwear, Inc., a corporation, and directed the broker through whom said purchase was made to have the certificates evidencing the ownership of said stock issued and registered in the name of said Genevieve Field Wenbert, and that the certificates evidencing the ownership thereof were issued by the said corporation on April 21, 1937 in the name of said Genevieve Field Wenbert and delivered and given by said Abe Field to his said daughter, Genevieve Field Wenbert, at the time of her marriage as aforesaid.'

'18. That the said Abe Field paid for the 200 shares of stock of Munsingwear, Inc., the sum of $6,155.00, and that on April 28, 1937 said stock was of the value of $28.50 per share or a total of $5,700.00 for said 200 shares.'

'19. That said decedent gave the aforesaid stock to his daughter Genevieve Wenbert as a wedding gift and marriage portion and in anticipation of said daughter's inheritance from the estate of said decedent, and that the same constituted and was an advancement made to and received by the said Genevieve Field Wenbert, and that the value thereof, to-wit: the sum of $5,700.00, should be charged against her distributive share of the estate of said decedent.' (Our italics)

'20. That thereafter the said 200 shares of stock of the said Munsingwear, Inc., which said Abe Field had given to his said daughter Genevieve, as hereinbefore found, began and continued to...