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IN RE ESTATE OF LUMMIS

November 29, 1954

In the Matter of the ESTATE of Leslie A. LUMMIS, Deceased. Arnold R. BOYD et al., Plaintiffs,
v.
Marguerite Lummis KEESEY, Defendant



The opinion of the court was delivered by: MEANEY

Leslie A. Lummis died testate June 25, 1948, a resident of Morris County, New Jersey, his will being duly probated and recorded in the Morris County Surrogate's office July 14, 1948. This will set up a trust naming as trustees Arnold R. Boyd, Margaret Beaumont Roebelen and Marguerite L. Keesey, who, having duly qualified, continue in that position. Pursuant to the terms of the will one-half of the income of the trust estate is payable to Marguerite L. Keesey (widow of testator) for life, and one-quarter to Margaret Beaumont Roebelen for life (a fourth quarter is payable to a former wife of the testator not concerned in this action). The sixth clause of the will provides that upon the death of Marguerite L. Keesey there will be a lapse and a permanent trust will be effectuated by the remaining trustees, or their successors, to pay the trust income over to Dartmouth College.

The will contains other provisions among which are clauses 9 and 11, which would seem to be the basis of the present proceedings and which read as follows:

 
Ninth: I give to my said executors and trustees, or the survivors or survivor or successor of them, full power and authority to do, in their, her, his or its discretion, and without liability for any error of judgment or any loss which may be occasioned thereby, any or all of the acts hereinafter mentioned, that is to say:
 
(a) To conduct, carry on, manage, operate and continue the business of the Lummis Glass Company, Inc. from such locality and in such territory and for such length of time, and in such manner as my said executors and trustees at the time in office shall deem advisable and for the best interest of my estate.
 
(b) To sell, without application to court, and at public or private sale, the whole or any part of the properties and assets of my said estate, or of the trust herein provided, upon such terms and conditions as to my executors or trustees at the time in office may seem proper and for the best interest of my estate or the trusts herein provided, and/or convenient for the distribution and administration thereof.
 
(c) To retain and hold any securities, properties or other assets in which the funds of my estate may be invested at the time of my death.
 
(d) To become party to any reorganization, consolidation, merger or other capital readjustment of any corporation, the stocks or securities of which may at any time be held by them as executors or trustees during the administration of my estate or the life of the trusts herein provided, and to participate in any such reorganization, consolidation, merger or readjustment to the same extent and as fully as though they were the absolute and individual owners of such stocks or securities, and to deposit with any committee or depositary, pursuant to any plan or agreement of reorganization, consolidation, merger or readjustment, any property held by them as executors or trustees, and to make payment from the principal of my estate or of the trusts herein provided of any charges or assessments imposed by the terms of any plan or agreement of reorganization, consolidation, merger or readjustment, and to receive and continue to hold any property allotted to my estate, or to the trusts herein provided, by reason of the participation therein of my executors or trustees.
 
(e) To invest and reinvest the funds of my estate, or the trusts herein provided, in such manner as in their, her, his or its judgment may seem proper, and my said executors and trustees, at the time in office, in making investments hereunder shall not be restricted to that class of securities in which fiduciaries are permitted by law to invest trust funds.
 
I direct that in passing and acting upon any matter in connection with the management, handling and administration of my said estate, and in the operation, conduct and management of the business of the Lummis Glass Company, Inc., and in the voting of any stock held by my estate or the trusts herein provided, and in the sale and distribution of any securities or assets of my estate, or the trusts herein provided, and in the investment and reinvestment of any funds of my estate, or the trusts herein provided, the majority opinions and decisions of my executors and trustees at the time in office shall control, govern and be sufficient for the action of my said executors and trustees.

 Arnold R. Boyd and Margaret Beaumont Roebelen are residents of New York, Mrs. Keesey of Connecticut. The major asset of the trust estate is the capital stock of the Lummis Glass Company, a New York corporation.

 After the demise of the testator, the three trustees acting within their powers elected themselves directors and officers of the Lummis Glass Company, and in such capacities have conducted the business of the Company since that time.

 In May, 1953 Marguerite Lummis Keesey (hereinafter referred to as the defendant in the present action) brought suit in the Supreme Court of New York, a court of competent jurisdiction, against the other two directors of the Company (hereinafter called plaintiffs) to declare void certain of their actions as officers and directors of the Company on the ground that they adversely affected the interests of that Company, and asking for certain other remedies. This action was dismissed on the merits by a judgment in favor of the plaintiffs, entered on April 20, 1954.

 In June, 1953 plaintiffs brought proceedings in the Morris County Court, Probate Division, for advice and directions as to whether defendant had by her action in the New York Supreme Court forfeited her interest in one-half the ...


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