Wimmer v. Staver (In re Staver's Estate)

• Decision Date: 30 April 1935
• Citation: 260 N.W. 655,218 Wis. 114
• Parties: IN RE STAVER'S ESTATE. WIMMER v. STAVER.
• Court: Wisconsin Supreme Court

218 Wis. 114

260 N.W. 655

IN RE STAVER'S ESTATE.WIMMER

v.STAVER.

Supreme Court of Wisconsin.

April 30, 1935.

Appeal from a judgment of the County Court of Grant County; W. J. Brennan, County Judge.

In the matter of the estate of Joseph Staver, deceased. From part of a judgment allowing the final account of W. G. Wimmer, executor, Frank J. Staver, contestant, a nephew of the deceased, appeals.--[By Editorial Staff.]

Reversed and remanded.

This appeal is from that part of a judgment of the county court of Grant county allowing the final account of W. G. Wimmer, executor, and assigning the estate of said deceased, dated March 20, 1934, which finds and determines that said executor is properly chargeable with the sum of $30,830.84; that he is properly credited with $7,476.84; that there is a residue in his hands for distribution amounting to $23,354; that said residue includes specific personal property, including certificates of deposit, as particularly set out in said judgment, and which adjudges that the final account be allowed as stated; and that certificates of deposit of Cuba City State Bank in the sum of $16,578.25 be assigned in accord with the terms of the last will and testament of deceased to Frank J. Staver (appellant) subject to a lien for the sum of $650.82 paid by the executor for inheritance tax of said estate, said lien being in favor of the executor and residuary legatees and devisees.

The facts will be stated in the opinion.

Harry E. Carthew, of Lancaster, for appellant.

J. W. Murphy, Jr., of Cuba City, and A. W. Kopp and MacArthur McKichan, both of Platteville, for respondent.

MARTIN, Justice.

Joseph Staver died March 1, 1932, leaving a last will and testament duly executed by him on February 20, 1932. The appellant, a nephew of the deceased, is one of the legatees named in said will. The first provision of the will is as follows: “After the payment of my just debts and funeral expenses I give, devise and bequeath to my nephew, Frank J. Staver of Hazel Green, Wisconsin, certificates of deposit of Cuba City State Bank now owned by me amounting to $16,578.25.”

Other specific bequests are made in sums aggregating $3,005. The residue of the estate is divided equally between eight nephews and nieces.

The respondent, W. G. Wimmer, is named as executor of said will and duly qualified as such on April 19, 1932. The will was admitted to probate in the county court of Grant county on April 5, 1932. The inventory and appraisal was filed April 23, 1932. The inventory included eleven certificates of deposit issued by Cuba City State Bank, dated on various dates from March 3, 1931, to February 27, 1932, both dates inclusive, and were all made payable to the order of “Joseph Staver or Frank J. Staver,” with interest at the rate of 4 per cent. per annum. Said certificates were inventoried at their face value, plus interest on each to date of decedent's death for a total of $16,578.25 principal and $192.41 accrued interest. The inventory included other personal estate appraised at $6,955.18 and real estate appraised at $6,500. The will was prepared by W. G. Wimmer at decedent's request.

At all times in question Mr. Wimmer was a stockholder, director, cashier, and active managing officer of the Cuba City State Bank, which facts were known to the deceased at the time of making his will. For some time prior to the issuing of letters testamentary, and continuing thereafter until early in July, the Cuba City State Bank experienced substantial withdrawals of deposits and heavy shrinkage in its bond account. In July, 1932, the bank went on a waiver basis, adopting the stabilization plan as provided by the laws then in force. Certain slow assets of the bank were segregated and placed in the hands of trustees, together with the proceeds of a 100 per cent. stock assessment. The depositors waived 35 per cent. of their deposits. The banking department advised the plan to stop a run on the bank.

On July 23, 1932, Mr. Wimmer as executor, subject to the approval of the court, signed a depositor's waiver agreement. Thereafter, on petition of the executor for approval of said waiver agreement, the county court denied said petition. On October 5, 1932, the executor petitioned the county court for a construction of the will, among other things, to determine whether the specific bequest to Frank J. Staver of the certificates of deposit issued by the Cuba City State Bank in the amount of $16,578.25 is subject to the payment of debts and expenses of administration.

In its decision construing said will filed May 24, 1933, the county court held: “That the testator did not intend to charge the payment of debts and funeral expenses upon the property (certificates of deposit) given to Frank J. Staver by the first clause of the will.”

On October 29, 1932, appellant gave notice in writing to William G. Wimmer, individually and as executor, demanding the possession of the eleven certificates of deposit, specifying each in said notice. He thereby asserted his claim of ownership, and in said notice further stated: “That in case of your refusal to deliver said certificates and each of them to the undersigned Frank J. Staver that he will take such action as he may be advised is necessary for the recovery thereof and will hold you * * * liable for all damage caused by your refusal to deliver said certificates and each of them.”

The executor did not surrender said certificates, and appellant took no further action to obtain possession of them.

On September 1, 1933, the executor wrote a letter to appellant's attorney advising that Frank J. Staver had not advanced the money necessary to pay his share of the inheritance tax, and further advising that he, the executor, would pay said tax that date. On September 14, 1933, the executor filed his final account and petitioned for its settlement and for the assignment of the residue of the estate. In said final account the executor charged himself with the inventory amount of the eleven certificates of deposit in question and credited himself with said certificates of deposit on hand at the same amount. At the hearing on the executor's final account held November 17, 1933, appellant filed written objections to the allowance of said account; his objections being that the executor did not charge himself with the cash proceeds of the certificates with interest. He further objected to the executor taking credit for said certificates of deposit on hand at the inventoried amount.

Appellant made the further claim that, when the certificates of deposit came into the executor's hands, under the custom of banking at the Cuba City State Bank, said certificates were payable at any time upon demand, that, at the time the executor qualified, a part of said certificates was due and payable, and that the executor could have collected on all of said certificates at any time prior to July 1, 1932. He also claims that at the time of qualifying as executor Mr. Wimmer was the cashier and active managing officer of said bank, and that, when he accepted the trust as executor and at all times thereafter, the interest of the estate conflicted with the personal interest of said executor as a stockholder, director, and officer of said bank. He further alleged that the executor failed to exercise reasonable care and good faith in the handling of said certificates; also that the bank was in financial difficulties, and that withdrawals therefrom might operate against the interest of the bank and of said W. G. Wimmer as a stockholder, officer, and director, and for that reason said executor failed and neglected to cash and collect all of said certificates.

It appears that as early as October 29, 1932, appellant demanded that the executor surrender to him the possession of the eleven certificates of deposit in question, asserting his ownership thereof, but without disclosing whether he was making said claim by virtue of the bequest in the will or by right of survivorship as one of the payees named in the certificates. This was prior to the decision of the county court construing said will. It appears further that appellant was present when the will was executed and knew the provisions thereof; also he had known for some considerable time prior to Joseph Staver's death that all of the certificates of deposit were payable “to the order of Joseph Staver or Frank J. Staver.” He testified in the county court that he made claim to the ownership of said certificates aside from the will. It does not appear that he ever had possession of the certificates or any physical control over them prior to Joseph Staver's death.

[1] The first question for our consideration is whether appellant takes title to said certificates by right of survivorship because of being a joint payee or as a specific bequest under the will of said deceased. Upon this question there is conflict and confusion in the authorities. Under a number of decisions, it has been held that in such a situation the transaction fails to meet the requirements of a trust because of the lack of intention to create a trust and that it fails to constitute a gift because there has been no delivery of the certificates. As a matter of legal principle, there seems to be no escape from the conclusion that under ...