Wilson v. Edmonds

• Decision Date: 28 June 1922
• Docket Number: 11,327
• Citation: 136 N.E. 48,78 Ind.App. 501
• Parties: WILSON, TRUSTEE, v. EDMONDS ET AL
• Court: Indiana Appellate Court

136 N.E. 48

78 Ind.App. 501

WILSON, TRUSTEE, v. EDMONDS ET AL

No. 11,327

Court of Appeals of Indiana

June 28, 1922

From Johnson Circuit Court; Fremont Miller, Judge.

Action by Hester Edmonds and others against Samuel A. Wilson trustee. From a judgment for plaintiffs, the defendant appeals.

Reversed.

R. M Miller, H. C. Barnett and O. S. Barnett, for appellant.

George I. White and Fred R. Owens, for appellees.

OPINION

MCMAHAN, J.

Elijah W. Bronson died testate in Johnson county in 1870. By item 2 of his will he bequeathed $ 10,000 to his executor to be invested in bonds of the United States to be held in trust and the interest thereon paid as collected to his wife for her support during her life, and at the death of his wife he bequeathed the said bonds to his eight children. That part of said item 2 so disposing of said bonds after the death of his wife reads as follows:

"And at her death, the said bonds or the proceeds thereof * * *, I give and bequeath to my eight children, viz., Hester Ann Edmonds, (here follow the names of seven other children) share and share alike, it being my will and purpose that the amount herein bequeathed to my daughters, Hester Ann Edmonds * * *, to them in their own right and for the sole use of my said daughters, and their children, free from the control and management of either husbands, or either of them. My intention being to vest in my said daughters, a separate estate herein in as full and ample manner, as though they were single women; and I hereby authorize and empower my said executors, as such trustees, if in their judgment and discretion there is danger of loss to my said daughters or either of them, of the principal then in such case, the said trustees, shall hold such shares or share in trust for such legatee, paying to her or them the interest as before provided to be paid * * *."

By item 4 the testator gave the balance of his property to his eight children named in item 2, on the same terms and conditions as were used in item 2, and with the same provisions relative to the executors holding the property in trust and to pay the income to the daughters.

Upon the settlement of the estate of the testator the share of Mrs. Edmonds was retained by the executor and trustee. On November 6, 1881, the trustee had on hand in said trust $ 11,844.22. This trust has been administered by the trustee named in the will and by successors to the time when this petition herein was filed. The last report of the present trustee, Samuel A. Wilson, was filed in October, 1916, at which time he had in his hands a balance of $ 4,946.71. Mrs. Edmonds has been a widow for several years and was between eighty-three and eighty-four years old when the petition herein was filed. She owns a productive farm of 151 acres located in Johnson county. Mrs. Edmonds, all of her children, and Charles Delaney, who had been appointed guardian for her, as an aged and infirm person, joining therein, filed a petition, reciting the facts as above stated, and alleged that in their opinion the income from the farm would be ample for the support and maintenance of Mrs. Edmonds, and that she wished the trust fund to be distributed among her children; that the cost of operating the trust had been high and the corpus of the trust materially reduced out of proportion to the benefits derived therefrom; that the farm was rented to Mr. Delaney, her guardian; that she is a person of good and economical habits, in good health, and that the petitioners believed it would be safe and would not result in any danger of her suffering want if the trust funds be distributed to her and her children, and they asked that appellant be required to show cause why the trust funds in his hands should not be immediately paid to the children and the trust terminated.

Appellant filed a ...