Malachowski v. Bank One, Indianapolis

570 N.E.2d 65, 1991 Ind. App. LEXIS 664, 1991 WL 64997
CourtIndiana Court of Appeals
DecidedApril 22, 1991
Docket49A03-9005-CV-284
StatusPublished
Cited by5 cases

This text of 570 N.E.2d 65 (Malachowski v. Bank One, Indianapolis) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Malachowski v. Bank One, Indianapolis, 570 N.E.2d 65, 1991 Ind. App. LEXIS 664, 1991 WL 64997 (Ind. Ct. App. 1991).

Opinions

HOFFMAN, Presiding Judge.

Plaintiffs-Appellants appeal from the trial court’s grant of summary judgment to defendant-appellee Bank One.

The facts relevant to this appeal reveal that appellants are some, but not all, of the adult income beneficiaries of an irrevocable inter vivos trust. Bank One is the trustee of the trust.

In 1935, the irrevocable inter vivos trust was established by Harry S. Noel, naming Bank One’s predecessor as trustee. Originally, the trust held the settlor’s life insurance policies. The trustee was directed to hold the policies and then, upon the set-tlor’s death, to collect and receive the proceeds and to hold, manage, invest, and reinvest the proceeds. The trustee was given the discretion to purchase property from the executor of the settlor’s will or from the trustee under any trust established by settlor’s will.

[66]*66Upon the settlor’s death, the income from the trust was to be paid to Nellie C. Noel, the settlor’s spouse, during her lifetime. Upon her death, the income was to be paid in equal shares to the settlor’s three children, Harry J. Noel, Barbara L. Noel, and Carol A. Noel, or their surviving issue. The trust is to terminate on the death of the survivor of the settlor’s three children, with the corpus to be delivered to the surviving issue of those three children, if any, or to the personal representatives of the children.

Harry S. Noel, the settlor, died in 1943, survived by the three children named in the trust. Harry J. Noel died in 1986, leaving six children, H. Jerome Noel, Jr., Nancy Noel (Kosene), William H. Noel, Carol Noel (Madrick), Louise Noel (Malachowski), and Irma Noel (Rand), all of whom are plaintiffs in this action. Carol A. Noel (Failey) died in 1961, leaving two children, John Noel Failey and William H. Failey, Jr., also plaintiffs in this case. Barbara L. Noel (Seawell) is still living, and has two children. Neither Mrs. Seawell nor her children are parties to this action.

Harry S. Noel also established a testamentary trust in his Last Will and Testament executed February 28, 1942. Upon the settlor’s death in 1943, the testamentary trust provided income to his wife during her lifetime. Upon her death, the corpus of the testamentary trust was to be divided into three equal shares, to be held and administered for the use and benefit of each of the testator’s three named children. The testator’s children were to receive distributions of corpus upon their attaining certain ages. The trust terminated upon the last of these distributions between 15 and 20 years ago.

After the settlor’s death, his estate was advanced funds by the inter vivos trust to pay the taxes. After the estate was closed, the testamentary trustee assumed the estate’s obligation to repay the loan. The loan was repaid via a transfer of 1,564 shares of Eli Lilly & Company stock.

From that time until 1972, the corpus of the inter vivos trust consisted entirely of Eli Lilly & Company stock. In October 1970, Mr. Garrett Boss of the bank suggested to the beneficiaries that a program of diversifying should be considered. Mr. Boss asserted that the Trust Investment Committee had discussed the concentration of Eli Lilly stock in the account and suggested a gradual diversification. Harry S. Noel met with the trustee to protest diversification. The trustee notified Harry Noel on November 6, 1970 that it might be possible to work out an indemnification agreement that would be satisfactory to the bank and Noel. Harry Noel responded asking the bank if it would be possible to split the trust if all the beneficiaries would not sign an indemnification agreement.

On December 2, 1970, the bank sent Harry Noel an indemnification agreement to be signed by all the beneficiaries. This indemnification agreement would hold the bank harmless from any loss resulting from the bank’s retention of the stock. However, the agreement also stated that the indemnity was not to be construed as imposing a contractual liability upon the bank to retain the stock if it should determine that all or any of the stock should be sold despite the indemnity.

On December 10, 1970, an attorney representing H. Jerome Noel and Barbara (Noel) Seawell wrote Garrett Boss contending that the suggestion of diversification had been met with “considerable concern” as this was the first suggestion that the holding of the Lilly stock was not in the interest of the beneficiaries considering that the investment was placed in trust at an approximate value of $35,000.00 which had increased in value in excess of $1,800,-000.00. The attorney stated that he could not permit his clients to sign the agreement since he felt it was “entirely written in the interest of the bank.”

An internal bank memorandum written November 18, 1971 by trust officer Thomas Jenkins reveals the bank’s position that the account should either be diversified or that the beneficiaries hold it harmless for any loss attributable to non-diversification. It is noted that H. Jerome Noel is strongly opposed to diversification and Barbara Sea-well will not provide the requisite indemni[67]*67fication. The plan was to go forward with gradual liquidation of Lilly stock, over an approximate five-year period, to obtain a goal of approximately 50% concentration. On November 19, 1971, Thomas Jenkins wrote two beneficiaries declaring that the bank had been “mandated by the National Bank Examiners audit staff and by our own Internal Trust Committee to either diversify this concentration of Lilly stock or seek indemnity from all interested parties against any loss due to its retention.”

Thomas Jenkins again wrote a letter on March 30, 1972 requesting indemnification. If indemnification was not received by May 15, 1972 the account would be diversified. Harry Noel replied asking for a 30-day extension of the deadline. He felt that all beneficiaries were opposed to diversification except for his sister, Barbara. The extension was granted by the bank. However, Harry Noel’s sister never signed the indemnification and diversification began on June 29, 1972.

In January 1980, Barbara Seawell, the lone dissenter to signing the indemnification, wrote the bank asking that diversification now be discontinued. Diversification was stopped.

A letter from Laurence Hulbert, trust officer, written to H. Jerome Noel on August 14, 1984 reflects a request by H. Jerome Noel to diversify the trust by selling shares of the Lilly stock. The stock was again sold on August 28, 1984 and continued until December 3, 1985.

In September 1985, Laurence Hulbert sent an annual investment review to the beneficiaries. Hulbert stated that the principal value of the account had increased by $356,642.00, or an increase of 18.93%. If the bank had not sold Lilly stock, “based soley on the increased value in Lilly common stock, the account would of [sic] increased in value by approximately $360,-000.00 more.” Hulbert further averred:

“However, as I think you will agree we had to make the diversification at some time....
With the sale of $11,500.00 shares of Lilly during the past year, we have managed to lower the concentration of Lilly in the trust portfolio, to meet our policy maximum level of 25% in any one investment.
I still recommend that we continue to lower concentration on Lilly so that any adverse turn in that one issue does not dramatically affect the total value of the trust....

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Malachowski v. Bank One, Indianapolis
570 N.E.2d 65 (Indiana Court of Appeals, 1991)

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Bluebook (online)
570 N.E.2d 65, 1991 Ind. App. LEXIS 664, 1991 WL 64997, Counsel Stack Legal Research, https://law.counselstack.com/opinion/malachowski-v-bank-one-indianapolis-indctapp-1991.