Rosenbaum v. Estate of Tobias

WARD, J. This appeal is from a judgment in a suit attacking a certain probate proceeding—on the ground that the filing therein of a creditor’s claim by one Dr. Elliott B. Tobias was affected with extrinsic fraud. By the judgment the court directed that- Sylvia Wenger, individually and as administratrix of the estate of said Tobias, deceased, pay and restore to the Wells Fargo Bank & Union Trust Company, as trustee under the last will and testament of Philip Wenger, deceased, the amount received in payment of such claim, together with interest; and if such amount cannot be recovered from the estate of said Tobias “that plaintiffs have and recover from defendant, individually and as such administratrix, for the benefit of said trust estate, the sum of Twenty-five Hundred Dollars ($2500.00) ... to be held and disbursed pursuant to the terms of said trust.”

The facts out of which the present action arose are as follows: The defendant Sylvia Wenger is the sister of Elliott B. Tobias and the administratrix of his estate. Dr. Tobias attended Philip Wenger, a widower, professionally during his lifetime, and in conjunction with the Wells Fargo Bank & Union Trust Company, was named as executor and trustee of his estate. Sylvia Wenger, in addition to being the sister of Dr. Tobias, is the wife of Philip Wenger’s brother, Sam. Gladys Wenger Rosenbaum and Leland Wenger, plaintiffs herein, are the two children of Philip Wenger, who were at the time of his death aged eighteen and nine years old respectively ; Gladys Wenger was at the time of her father’s death unmarried. Philip Wenger’s estate was left to his two children in equal shares, a trust instrument providing for payment to each of them quarterly of the income on his or her half of the estate. The trust was to terminate as to each child when he or she reached the age of thirty-five years, at which time the corpus belonging to such child was to be distributed.

On September 27, 1932, the day following Philip Wenger’s death, Dr. Tobias verified a petition for letters of guardianship as to the two children, which was filed on September 28th. He alleged that he had been a friend of the minors for a long time; that his sister had married their uncle; that the children were more or less directly under his care and control and that Gladys had nominated him as her guardian. Sam Wenger, the uncle of the children, was appointed the guardian of Leland; Gladys having married during the [42]month after her father’s death, no guardian was appointed for her.

On the day after Philip Wenger’s funeral Dr. Tobias talked with Gladys Wenger and Harry Rosenbaum (who subsequently married Miss Wenger), stating to them that he should be paid a couple of hundred dollars for professional services rendered Gladys’ father, but suggested that he put in a claim against the estate for $2,000 which would take care of professional services by him to Leland and Gladys for the remainder of their lives. Rosenbaum testified in this connection: “. . . he also cautioned me not to discuss this or mention it to anyone because, he said, if it got back to the bank, they wouldn’t appreciate the services or the attitude he was taking, and he said they might interpret it in a different way. He said, ‘This way I am saving you a lot of court expenses, rigmarole and red tape. ’ ” The next day Tobias informed Gladys and her fiance that some extraordinary services might be required of him in earing for the former and her brother Leland “and it would be best if it were $3000 because then I would feel I was being compensated for my services and wouldn’t feel like slighting the kids.” A claim was filed in this amount, the itemization of which, attached thereto, showed office, home, hospital and emergency calls, etc., for Philip Wenger, his deceased wife and his two children aggregating the sum of $3,367.50, which amount was ostensibly reduced to the $3,000. Dr. Tobias represented to his co-executor that the claim was “fair, true and correct,” and the bank finally agreed to approve the same if it met with the approval of Gladys, then Mrs. Rosenbaum, and Sam Wenger, the guardian of Leland. There is testimony in the record that Tobias told Rosenbaum: “ ‘The claim is going to be presented to you kids for signature, and I would suggest signing it,’ he says, ‘Don’t pay any attention to the form in which it is written up because the agreement that you and I have cannot be shown in the claim. ’ ” The claim was finally approved by the bank and Tobias, as executors, and paid.