Appeal by plaintiff from the Circuit Court of DeKalb county;
the Hon. HARRY W. McEWEN, Judge, presiding. Heard in this court
at the May term, 1950. Judgment reversed and remanded with
directions. Opinion filed October 20, 1950. Rehearing granted
February 8, 1951. Additional opinion filed July 12, 1951.
Released for publication August 1, 1951.
MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT.
Rehearing granted February 8, 1951
Plaintiff, Martin Redmer, trustee under the will of his deceased brother, Norman W. Redmer, filed a complaint in the circuit court of DeKalb county against defendant, Hugo J. Hakala, administrator with the will annexed of the estate of Norman W. Redmer, and others, in which plaintiff sought a temporary injunction restraining the sale and resale of the major assets of the estate, a construction of the will, and a determination of the trust therein established, the appointment of a suitable trustee to administer the trust, and the completion of the administration of the estate in the circuit court. The circuit court, on motion of defendant Hakala, dismissed the complaint, prior to the return date of summons for some of the defendants, after determining only that the circuit court would not complete the administration of the estate, and plaintiff has appealed therefrom.
The fundamental issue presented herein is whether plaintiff's complaint established a right to the relief requested, or any part thereof.
In ascertaining whether plaintiff was entitled to injunctive or other relief, it is incumbent upon this court to closely examine the uncontroverted sequence of events set forth in plaintiff's verified complaint, and determine the legality and propriety of the administration of the estate of Norman W. Redmer by the defendant Hakala and the county court.
The testator, Norman W. Redmer, died on August 25, 1948, and his brother, Martin Redmer, the plaintiff herein, as one of the executors named in the will, submitted the will to probate on September 3, 1948. On September 10, Martin Redmer petitioned the county court for letters of administration to collect, since there would be some delay before the admission of the will to probate. The county court ordered such letters to issue after Martin Redmer filed a bond for $2,000, and on October 11, 1948, the will of Norman W. Redmer was admitted to probate.
Under the terms of the will, the testator appointed the Pioneer Trust & Savings Bank, his brother, Martin Redmer, and sister, Wilhelmina Redmer, as executors and trustees, and directed that none of them shall be required to give any bond or other security. In the event of the death or inability of a named executor or trustee to act, it was provided that the testator's brother, Fred, shall become a successor, and no bond shall be required of him. No other successors shall be appointed on any subsequent vacancy.
On October 11, the Pioneer Trust & Savings Bank filed its written renunciation as one of the executors. The county court thereupon entered an order appointing Martin and Wilhelmina Redmer as executors of the will, and directing that letters testamentary be issued to them on condition that they file a bond in the sum of $40,000, with sureties to be approved by the court to secure the faithful performance of their duties as executors, notwithstanding the fact that the will excused them from giving any security. That same day Martin and Wilhelmina Redmer filed their oaths as executors, but thereafter Wilhelmina Redmer filed her written renunciation of the appointment in the county court. Martin Redmer, however, remained willing and able to act, although he did not immediately file the bond.
On November 1, 1948, some two and one-half weeks later, in a proceeding without a hearing or notice, or even a petition filed therefor, the county court entered an order, of which none of the interested parties were apprised, reciting that each and every person or corporation named in the will as executor has failed to qualify and refused to act, and appointing Hugo J. Hakala as administrator with the will annexed of the estate of Norman W. Redmer. Defendant Hakala immediately filed his oath, and on the following day he filed his bond and letters of administration were issued to him.
On February 3, 1949, Martin Redmer endeavored to have his bond, as executor of the will of his deceased brother, approved, but the county court found that certain interested parties were not present, and ordered that notice be given, and the matter set for hearing. At this hearing on February 15, the county court disapproved Martin Redmer's bond, and denied his appointment as executor for the alleged reason that he had heretofore refused the appointment. It is undisputed, however, that Martin Redmer at no time filed any written renunciation of his appointment as executor and trustee under his deceased brother's will, or intimated such an intention to the court.
An attempted appeal from this order of the county court was dismissed without a hearing on the merits on the ground that the court costs had not been paid.
To comprehend the significance of the subsequent events and the extent to which the defendant Hakala disregarded and deviated from the testator's expressed intentions, reference should be made to the unambiguous provisions of the will.
The will bequeathed all of the testator's stock in United Precision Products Company, which was his own business, and all of his residuary estate, including his stock in Redmer Building Corporation, to his named trustees for the use and benefit of his minor son, Norman Frank Redmer. It was provided that the trustees shall, commencing at the date of the testator's death, pay half of the net income at convenient intervals not less frequently than quarter-yearly, to the son, and retain the balance in the corpus. Upon the son's reaching 25 years of age, the trustees shall distribute 25 per cent of the trust estate to him, and when he reached 30 he was to receive the balance. Moreover, if other payments of income or corpus were required for the minor, the trustees could themselves expend the sums, or make payments either directly to the minor, or to the legal guardian, or to a surviving relative, to be expended on behalf of the minor.
The testator's intent with reference to United Precision Products Company is clearly manifested in the following provision: ". . . Since I have devoted years and effort to the development of the business now known as United Precision Products Co., which I have provided to be conveyed to my trustees, I suggest that my trustees deal with the property . . . with the idea of continuing and carrying out my policies . . . as well as giving full consideration to the preservation of the business for my son. Any decision to sell the interest in this property should be by unanimous action of my trustees. . . ." The testator provided further, that if after the ...