82 Mich. 596 | Mich. | 1890
Complainant filed her bill in the circuit court for Wayne county in chancery, asking for the appointment of a trustee in the place and stead of Ilenry Stephens, deceased, and George E. Stephens, . who were named as executors and trustees under the last will and testament of John Stephens, deceased, father of complainant, under and by virtue of whose last will and testament a trust fund was created for the benefit of complainant that was received by Henry Stephens in his life
The bill avers, substantially, that John Stephens died in October, 1881, leaving a last will and testament, which was duly probated, in which he appointed Henry Stephens, George E. Stephens, and Eobert P. Toms executors and trustees to carry out the trust created by the will; that Mr. Toms refused to accept the trust, but that Henry and George E. Stephens qualified as such executors and trustees, and entered upon the discharge of their duties; that Henry Stephens was the brother of John Stephens, deceased, and John Stephens was the father of George E. Stephens, and of complainant; that said John Stephens left an estate aggregating in value the sum of $105,000, which estate was devised and disposed of by the fourth, fifth, sixth, seventh, and eighth paragraphs of his last will and testament. The fifth paragraph referred to provided that all sums of money advanced to his children, or either of them, on his books, or on the books of John Stephens & Sons, or that were represented by promissory notes, should be deducted from the share or portion of the child or children having received such advance. The sixth and seventh paragraphs referred to provided as follows:
“Sixth. I give, devise, and bequeath all the rest, residue, and remainder of my estate, real, personal, and mixed, of every name and nature, and wheresoever situated, to my executors and trustees hereinafter named, or to the survivor or survivors of them, in trust for the following uses and‘purposes, viz.:
“ That my executors and trustees, or the survivor or survivors of them, shall, as soon as practicable after my*599 decease, enter upon and take possession of tbe residue of my estate of every name and nature, and sell and dispose of the same, — except my stock in the Second National Bank of Detroit, and the merchandise and property of John Stephens & Sons, which I wish to have disposed of, if practicable, so as to carry out the copartnership agreement existing between myself and my sons, John E. and George R. Stephens, under the firm name of John Stephens & Sons, — on such terms and conditions as they, or the survivors of them, shall deem for the best interest of my estate, and convert the same into money; and, after payment of all my just debts, legacies, funeral expenses, and expenses of administering my estate, and erecting tombstones, etc., as hereinafter provided, they or the survivors of them shall divide the same into eight equal parts or portions, and pay the same over to my children in equal portions, share and share alike, except the shares or portions intended for my daughters, Susan Little, wife of Robert A. Little, and Mary S. Lamson, wife of George W. Lamson, which are to be retained, controlled, and managed by my executoi’S and trustees, or the survivor or survivors of them,' as hereinafter directed.
“Seventh. I do will and direct that my daughters, Mary S. Lamson and Susan Little, shall have the right to elect and take, toward their shares or portions, capital stock in. the Second National Bank of Detroit, in equal proportions, at its then market value, and the same shall be taken and holden by my executors and trustees, or by the survivor or survivors of them, for the interest, benefit, and advantage of my daughters, Mary S. Lamson and Susan Little, and the child or children then surviving, as hereinafter mentioned: Provided, That my executors and trustees, or the survivor or survivors of them, if from any cause they shall deem it prudent and for the best interests of my childran that said bank-stock should be sold, they, or the survivors of them, have full power and authority to sell the whole, or any portion thereof, on such terms and conditions as they shall deem for the best interests of my estate.”
The eighth clause referred to provided that the share or portion the income of which should belong to his daughters, Mary S. Lamson and Susan Little, should be taken and held by his executors and trustees, or the sur
Complainant further claims that said John Stephens left surviving him eight children, and, under the provisions of said will, a sum in excess of $13,000 came into the hands of, and was received by, said Henry Stephens and George R. Stephens, as trustees under such will, for investment, under the terms and provisions thereof, on account of the share of complainant, Susan Little, and a like sum on account of the share of the daughter Mary S. Lamson; that the said John Stephens was the owner at the time of his decease of stock of the Second National Bank of Detroit, of the par value of $20,000, which came into the hands of such executors and trustees; that they
That Henry Stephens, one of said trustees, deceased in the winter of 1885-86; that the said Henry Stephens in his life-time, and the administrators of his estate after his death, paid to the complainant, Susan S. Little, up to July, 1888, what was represented to be the income upon her share in her father’s estate, but, after that date, the complainant was unable to procure the same, and thereupon caused investigation to be made as to how the
The will is made an exhibit to the bill. The bill prays-for an accounting, that a new trustee may be appointed, and that the defendants be required to pay into his-hands the trust funds that came into the hands of Henry Stephens and George R. Stephens. The defendant George R. Stephens has never been brought within the jurisdiction of the court. There is no averment in the bill that any part of this trust fund came into the hands of the defendants, except the averment that the stock of the Detroit National Bank — the alleged successor of the Second National Bank — came into the hands of Henry Stephens, deceased, in his life-time, as a part of the estate of John Stephens, deceased. It is, however, averred in the bill that the trustees, Henry and George R. Stephens, invested the same, or a large part thereof, in
To this bill the defendants, the heirs at law of Henry Stephens, deceased, severally pleaded that no part of the goods and property which belonged to John Stephens in his life-time, and which came to the hands of Henry Stephens in his life-time, as trustee as aforesaid, has come to them, of either of them, and that they never had, and had not at the time of pleading, in their possession, custody, or control any part or portion of said money, property, or effects. In aid of this plea it was further averred that the Second National Bank of Detroit ceased to exist on February 26, 1883; that it never had a successor; and that the Detroit National Bank was not and is not the successor of said Second National Bank of Detroit.
To these pleas the complainant interposed a replication. The testimony of Mr. Clement M. Davison was taken by the complainant. Upon the issue thus made, and upon the hearing in the court below, decree was entered dismissing complainant’s bill. Complainant appeals.
It is now contended by the solicitors for the complainant—
1. That the testimony of Mr. Davison, who is cashier of the Detroit National Bank, and who was cashier of the Second National Bank, establishes the fact that the stock of the Detroit National Bank came to the hands of Henry Stephens as trustee under the will of John Stephens, deceased.
2. That this stock was distributed to the defendants, as heirs at law of Henry Stephens.
The only questions, therefore, open for discussion here arise under the first and second propositions made by complainant’s counsel, and they rest entirely upon the testimony of Mr. Davison, as he gave the only testimony in the case. Defendants’ counsel in his brief summarizes the testimony of Mr. Davison as follows, which is substantially correct:
“He testified that he was the cashier of the Second National Bank of Detroit until the expiration of its charter; that upon the organization of the Detroit National Bank he became its cashier; that at the time of his death*605 John Stephens held stock in the Second National Bank to the value of $10,000. He, at one time, had held $20,-000, but had sold $10,000, before his death, to Governor Alger. The $10,000 he held at the time of his death was transferred to his executor Henry Stephens, in October, 1882. The Second National Bank charter expired on the 26th day of February, 1883. The Detroit National Bank went into business at the same place, and with substantially the same gentlemen as its principal officers. About one-half of the holders of stock in the Second National Bank did not acquire stock in the Detroit National. There waB no connection between the stock in the old and in the new organization. If a man took stock in the new bank he paid for it. There was no such thing as an exchange of old stock for new. The full par value was paid in on the new organization in money, — not by an exchange for old stock. It was not the aim in any instance to give the old stockholders stock in the new bank, but to give it to parties who would be of service to the bank. The new bank was an entirely new organization. Witness held stock in the old organization, but held none in the new. The capital stock of the Detroit National Bank had been all paid in before any part of the assets of the Second National Bank had been distributed among its stockholders. It was the policy of the new bank to distribute its stock to business men, — . people who could help it. Henry Stephens took $20,000 stock in the new bank.-”
It appears from this testimony that, although the Second National Bank stock was transferred to Henry Stephens as executor and trustee under the will of John Stephens, yet, at the time of the dissolution of that bank, and the winding up of its affairs, this stock was paid for in money, which came into his hands as trustee. He subsequently took $20,000, in his own mame, of the stook of the new corporation. While it is true that there is nothing in the record showing that this stock was taken for the estate of John Stephens, and it is denied by the plea, yet the direction in the will was that the stock of the Second National Bank should be held by the exec
The decree of the court below must be reversed and set aside, with costs of both courts. The cause will be remanded to the court below, and an account taken, and decree entered there against the defendants, for the amount found due to complainant on such an accounting.