The opinion of the court was delivered by: Aspen, District Judge.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This cause coming on for trial without a jury and the Court
having considered the sworn testimony of the witnesses, the
exhibits received in evidence, argument of counsel, the
relevant authorities, and being fully advised in the premises
makes the following findings of fact and conclusions of law
pursuant to Fed.R.Civ.P. 52:
1. Plaintiff, Susan Kemper Hamilton ("Plaintiff"), is a
citizen of California currently residing in Switzerland.
2. Defendant, Arthur C. Nielsen, Jr. ("Nielsen"), is a
resident of Illinois.
3. Defendant, American National Bank and Trust Company ("the
Bank"), is a national banking association with its principal
place of business in Chicago, Illinois.
4. The matter in controversy, exclusive of interest and
costs, exceeds the sum of $10,000.
5. Plaintiff is one of several surviving children of Milton
J. Hamilton who died on October 16, 1972, a resident of Lake
6. On March 9, 1961, prior to his death, Milton J. Hamilton
created an insurance trust ("the Trust") naming the Bank as
trustee. By a subsequent amendment, Nielsen was named advisor
to the trustee. The Trust provided that after the death of Mr.
Hamilton and his mother, now both deceased, the Trust would be
divided equally among five beneficiaries, one of whom is the
plaintiff. The Trust authorized the trustee, subject to the
authority of the advisor, to retain any property it received
and to sell such property at private sale.
7. Mr. Hamilton's will was executed on September 20, 1972,
and it was admitted to probate in Lake County, Illinois, on
November 9, 1972. The will contained a "pour over" provision
whereby the residue remaining after the payment of taxes,
costs, claims, and specific legacies (hereinafter referred to
as the "cash requirements") was to go to the Bank as trustee
of the Trust. The will also authorized the executors to sell,
retain, or invest property, or continue present investments
upon such terms and in such manner as they deemed best, free
from any limitations imposed by law and without order of any
court. The will named the Bank and Nielsen as co-executors.
8. As co-executors, the Bank and Nielsen were responsible
for meeting the estate's cash requirements out of the assets
of the estate and funneling any residual assets to the Trust
for the benefit of the five beneficiaries.
9. Among the assets of the Milton J. Hamilton estate were
58,718 shares of stock in Frank B. Hall and Company ("Hall"),
31,680 shares of Zenith United Corporation ("Zenith"), and a
nontransferable option to acquire an additional 9,375 shares
of Zenith at $2.72 per share on or before December 27, 1972.
The executors exercised the option before it expired in
December, 1972, when Zenith was trading at between $4 5/8 and
$5.00 per share.
10. At the date of Mr. Hamilton's death, the 58,718 shares
of Hall stock had a trading value of $1,548,687.25 at $26 3/8
11. During the administration of the estate, the executors
made the following sales of Hall stock:
NO. OF PRICE NET
DATE SHARES PER SHARE COMMISSIONS PROCEEDS
1/29/73 11,000 19 1/8 $2,750.00 $207,625.00
6/13/73 5,000 12 60,000.00
7/17/73 5,000 13 1/4 66,250.00
9/04/73 5,000 15 75,000.00
2/18/75 4,700 14 5/8 775.50 67,962.00
2/18/75 300 14 7/8 49.50 ...