Wisler v. Tomb

MELVIN, J.

Defendant demurred generally and specially to plaintiff’s second amended complaint. The demurrer was sustained, plaintiff refused to amend and judgment for defendant was entered accordingly. This appeal is taken by plaintiff from said judgment.

Plaintiff averred in his unverified complaint that he was the duly appointed, acting, and qualified trustee of the trust estate of Thomas Tomb Harbeson, a minor. He sued as such trustee and sought judgment against defendant in her capacity as executrix of the last will of Thomas B. Tomb, deceased. According to the allegations of the complaint the following facts appear: On March 3, 1910, Thomas B. Tomb made and delivered to plaintiff as trustee for the former’s nephew, Thomas Tomb Harbeson, a promissory note payable on or before one year after date, with interest at six per cent per annum. The principal was never paid, but on April 3, 1910, the maker of said note paid one hundred and fifty dollars as interest. On January 26, 1911, the plaintiff, as trustee, presented to the defendant as executrix of the estate of Tomb, his verified claim on said promissory note for principal and interest then due, and the said executrix rejected the claim. On the day and date of the execution of the note, Thomas B. Tomb, the more particularly to declare the pur

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pose for the execution of said instrument, made a written declaration of trust in which he stated that he had placed in the hands of Henry M. Wisler the sum of thirty thousand dollars to be used, as provided in the declaration, for the support and education of the beneficiary Thomas Tomb Harbeson. The instrument was signed by Tomb and Wisler, the latter by the terms of the writing accepting the trust. Maria G. Tomb signed as a witness. Maria G. Tomb was then and there informed (to quote from the complaint) “that she had been appointed executrix of the last will and testament of said Thomas B. Tomb, deceased,” and she then and there (to quote further) “consented to the said declaration of trust, and agreed that on the death of the said Thomas B. Tomb, deceased, she would in full, and in every particular, and without any exception whatsoever, carry out the said trust, and then and there agreed, that, upon the death of the said deceased she would immediately set apart the said thirty thou-said dollars for the express purpose of carrying out the said declaration of trust, and would, as soon as she had qualified as executrix, pay over to the said Henry M. Wisler the said thirty thousand dollars, to be invested by him as provided in the said declaration of trust.” We may say, in passing, that the 'ghostly implication of the earlier quotation that her