In Re Patrick's Estate
In Re Patrick's Estate
Opinion of the Court
delivered the opinion of the court.
This is an appeal by three heirs of deceased from an order of the probate court confirming a sale to Patrick Brothers, Inc., a Wyoming corporation, of 2,405 shares of its capital stock for the sum of $6,606.17, approximately $2.75 per share.
Following the death of Lottie H. Patrick on May 22, 1951, a son, Arthur G. Patrick, was appointed as administrator upon the request of deceased’s nine children. He caused inventory and appraisement to be made, which showed the assets of the estate to be 8,804 shares of Patrick Brothers, Inc., stock, valued at $21,127.60, and a Series E bond, valued at $87.50. Thereafter, on February 8, 1952, he filed a petition setting out the appraised value of the estate items and asking authority to sell at private sale so much of the personal property as necessary to obtain $13,718.82, which his petition showed to be the amount owing by the estate to the corporation for moneys advanced for deceased’.s support, care, and expenses of last sickness, plus funeral costs and expenses of administration. The court immediately thereafter entered an order authorizing the sale of 5,720 shares of the stock, subject to court approval and confirmation. Nothing regarding the sale occurred in the probate proceeding for some ten years. According to desultory references in the record and argument, various other litigation had been occurring between the heirs during this period.
On August 1, 1962, Bryan Patrick filed a petition for the revocation of letters of administration of Arthur G. Patrick, alleging, inter alia, that the administrator had failed to obey the 1952 order of the court regarding the sale of the stock and asserting that he had failed to file proper accounts. The same day Bryan Patrick submitted his own petition to be appointed as administrator. On March 13, 1963, the court, after hearing evidence, found that Arthur G. Patrick had been guilty of unreasonable delay and neglect, that Bryan Patrick was the only applicant for appointment of administrator and by reason of being a son had a prior right of appointment, revoked the letters to Arthur G. Patrick, and appointed Bryan Patrick.
On April 23, 1963, the new administrator filed a report of sale and petition for confirmation, referring to the February 1952 order of the court, reporting that he had sold 2,405 shares of the Patrick Brothers, Inc., stock to that corporation for a price of $6,606.17.
LeGrand, Hugh, and Arthur G. Patrick objected to the petition for confirmation on the ground that Bryan was both the administrator of the estate and the president of the corporation; that he was a majority stockholder therein; that the sales price was unjust, not commensurate with actual value; that the administrator was in fact dealing with himself; and that the stock was worth in the neighborhood of thirteen dollars per share. Bryan Patrick thereafter gave his own consent to the sale of the stock, as did Carrie Bartlett and Grace Patrick, widow of Robert K. Patrick.
After a hearing on the matter, the court on March 2, 1964, confirmed the sale, finding it had been made by the administrator “pursuant to a prior order * * * entered herein under date of February 11, 1952.”
The appellants urge that there was failure to comply with (a) § 2-153, W.S.1957, requiring “Every * * * administrator must make and return to the court within a reasonable time after his appointment, a true inventory and appraisement of all of the estate of decedent * * * ”; (b) § 2-250, W.S.1957, “All petitions for orders of sale must be in writing, setting forth the facts showing the sale to be necessary * * (c) § 2-253, W.S.1957, permitting applications for orders to sell so much of the personal property as may be necessary to pay the debts of the estate, and (d) § 2-249, W.S.1957, providing that no sale is valid unless under order of the court. Appellants further argue that the administrator failed to comply with the corporate procedures,, that the stock was not sold at its fair book' value, and that the sale is invalid because-Bryan Patrick was a fiduciary and could', not deal with himself, which he in fáct did.
We turn first to the insistence that Bryan Patrick, the successor-administrator,, failed to comply with the statutory requirement of making and returning a true inventory and appraisement within a reasonable time and the inference that such omission was fatal. No authority or precedent is submitted. We have never had occasion to pass upon the specific question thus raised, but in In re Hartt’s Estate, 75 Wyo. 305, 295 P.2d 985, we held that under the circumstances of that case a failure to file an inventory for about eight months was not-cause for removal of the executors; while in In re Haddenham’s Estate, Wyo., 358 P.2d 706, we noted the use in the statute of the word “must” and held the removal of the executor for failure to comply with the statute was within the discretion of the trial court. If the legislature had intended.
It is unnecessary to discuss appellants’ assertion of noncompliance with §§ 2-249 and 2-250 because they assume, without undertaking to substantiate by authorities or cogent argument, compliance with these statutes to have been requisite during the period of Bryan Patrick rather than that ■of his predecessor.
We advert then to the argument that there was a failure of Bryan Patrick to follow the requirement of § 2-253 in seeking an order to sell so much of the personal property as was necessary and the correlative assertion that his sale of 2,405 shares of the estate’s stock in the corporation was unwarranted. As to the first portion of the ■argument, we agree with appellee that the ■original administrator’s petition was sufficient. However, the latter portion of the argument is unchallenged, Bryan Patrick admitting on cross-examination that the amount to be received from the sale of the ■stock would be more than sufficient to pay the obligations of the estate, including costs ■of administration. His excuse was revealing, “We thought to be save [safe] we should have a little in excess and any residue money would be distributed equally * * *. We could see no difference.” The mentioned statute gives no authority to sell more of the personal property than is necessary to pay the debts, and the petition upon which the court’s order of sale was based did not request more than was required to pay the estate’s obligations. The sale of any stock over this amount cannot be approved. In re Potter’s Estate, Wyo., 396 P.2d 438.
Passing then to the argument that the administrator, Bryan Patrick, failed to comply with corporate procedures, we note appellants’ statement that Article XI of the articles of incorporation provides that none of the shares of stock shall be sold without the consent of the board of directors unless the holder gives certain notice and that Article XIII of the by-laws provides :
“Any member of this corporation who shall be desirous of selling any of his shares, the executor or administrator of any member, deceased, and the grantee or assignee of any shares sold on execution, shall cause such, their shares, respectively, to be appraised by the directors, which it shall be their duty to do on request, and shall thereupon offer the same to them for the use of the corporation at such appraised value; and, if said directors shall choose to take such shares for the use of the corporation, such * * * administrator * * * shall, upon the payment * * * of such appraised value * * * transfer and assign such * * * shares to said corporation * * *.
“It shall be the duty of such * * * administrator * * * to offer said shares for appraisal of its then book value * *
Since the evidence discloses the consent of the board of directors to the sale, there would not appear to be any violation of Article XI. As to the alleged failure to comply with Article XIII, appellee asserts that there was substantial compliance with this provision as shown by the minutes of the corporation meeting on February 10, 1952, which in the aspect material to this point stated:
“Upon motion duly made, seconded and carried, the President and Secretary are hereby authorized and directed to purchase, at book value based on the financial statement of December 31, 1951, a sufficient number of shares of the capital stock held in the name of Lottie H. Patrick, to fulfill the require*277 ments of the Resolution adopted May 26th, 1951, and upon proper official notification by the Administrator of the Estate of said Lottie H. Patrick, to transfer any remainder of stock according to his instructions.”
The designated minutes of the May 26 meeting recited a discussion of the accounts receivable from the deceased to the corporation, noted the fact that since the assets were composed entirely of her stock it would be necessary for sufficient thereof to be sold for the purpose of raising money to pay the sums advanced by the corporation and the debts and expenses of the estate. These minutes also disclosed the passage of the following resolution:
“Resolved, that Patrick Brothers, Inc., a corporation, purchase number of shares of capital stock from the Estate of Lottie H. Patrick, deceased, for the purpose of providing money with which to pay Estate expenses, and debts of the deceased. Be it further resolved, that each stockholder present, by signing this Resolution, does hereby consent and approve the purchase of said stock by the corporation.”
The minutes show the resolution to have been signed by eight of the deceased’s children, including Arthur; however, on the stand, he asserted that he was not present at the meeting, that there was no meeting ■on that date, it being the day of his mother’s funeral, and that at no time had he attended :a meeting where a resolution had been ■adopted authorizing the purchase of a blank ■number of shares. Neither party cites analogous cases or authorities, the challengers merely pointing out that the corporate procedures were not followed and the ■one challenged responding that the mentioned occurrences constituted substantial compliance with the provisions in the articles •and by-laws. Appellee draws attention to the fact that all of the Patrick children who were stockholders of the corporation had •entered into an agreement on November 15, 1944, in which they (1) recited that the Mother, Lottie, was suffering from senile dementia, requiring constant care and attention, resulting in expense, which might exceed the resources of her property, and that it devolved upon the heirs, and it was their desire, to provide for her care; (2) stated the number of shares of stock each of the family members signing the agreement had in the corporation; and (3) provided that the corporation should defray all expenses for the last sickness of Lottie, including expenses of the funeral, and keep an account of the same — the heirs jointly and severally guaranteeing full payment to the corporation of all sums advanced, and in order to secure repayment to the corporation of the sums, endorsed their stock, and agreed that after the amount of advancement made by the corporation had finally been determined, less any repayments made by the estate, any residue of the stock of Lottie H. Patrick remaining in the estate should be divided among her heirs according to law.
Although there was not a literal compliance with the portion of Article XIII which provided that the administrator should cause the shares to be appraised by the directors, there is considerable basis here for the contention that the compliance was substantial, and no showing that a failure of exact compliance was fatal.
Considerable argument of the parties is directed to the value of the stock, the appellants contending that on the basis of the assets of the corporation the stock is worth far more than the amount paid, and in fact about thirteen dollars per share, pointing out that they made an offer of proof to substantiate this amount and that the term “book value” could not properly and equitably be construed as being any figure which the corporation might choose to employ even though such may have been used for tax or other purposes. They charge further that the large difference in the value of the stock and the price paid by the corporation would especially benefit Bryan Patrick, the largest stockholder in the corporation, and additionally that he was by his interest disqualified from pur
“The term 'book value’ has no generally accepted meaning; its significance varies according to the particular definitions or stipulations under which it is to be determined. * * *
“Because 'book value’ is not a term of art representing a constant concept, and! because its significance often appears not to be adequately appreciated by parties using it, its use in contracts and other documents has often resulted in-ambiguities which culminated in misunderstandings and litigation. * * * ”
It would serve no useful purpose to pursue definition of these words since it was appellants’ burden to show an improper valuation of the stock if that were the fact, and' this was not done under any concept of the-evidence. There was no showing that the valuation of a share of Patrick Brothers, Inc., stock at the time of the death of deceased or at the time of the order of sale of deceased’s stock in 1952 was more than the-$2.75. Instead there was an insinuation which was not sufficient to warrant the trial' court’s granting of relief. Moreover, even-were the 1963 date to be considered as controlling, there would be no evidence of a disparity between the actual value of the stock and the selling price. Appellants offered to prove the value of certain lands and holdings of the corporation. Upon appel-lee’s objection on the basis of lack of relevancy, the court rejected the offer, and we think properly, since the proof of certain assets could not under any concept of the situation prove book value without other comprehensive evidence concerning the financial status of the corporation. An offer to prove facts which must be followed by other proof to connect it is inadmissible unless there is also an offer to prove the connection. Lewis Hubbard & Co. v. Montgomery Supply Co., 59 W.Va. 75, 52 S.E. 1017, 4 L.R.A.,N.S., 132; 53 Am.Jur. Trial §102.
The appellants in the trial court had the substantial burden of showing that the chal
The judgment should be modified to allow the sale of only so much of the stock as was necessary to pay the debts of deceased, the costs of last sickness, funeral expenses, and administration. Subject to such modification, the judgment is affirmed.
Affirmed as modified.
. “No executor or administrator mustj directly or indirectly, purchase any prop-e.rty of tlie estate lie represents, nor must lie be interested in any sale.”
Reference
- Full Case Name
- In the Matter of the ESTATE of Lottie H. PATRICK, LeGrand PATRICK, Hugh Patrick, and Arthur G. Patrick v. Bryan PATRICK, Administrator of the Estate of Lottie H. Patrick
- Status
- Published