Yawman erbe manufacturing rochester ny11/9/2022 ![]() ![]() In July, 1941, a trial of the objections was had and by decision of July 25, 1941, the Surrogate allowed defendant bank's claims against the estate, and declined to give advice concerning the sale of the Yawman & Erbe stock, but stated that after a full hearing it appeared that a public sale thereof would be advantageous, that the estate beneficiaries could not expect the defendant bank, as executor and major creditor, to carry the risk as to the future value of the stock, that if the beneficiaries wished they might buy it themselves, and that there was no reason why defendant bank, a coexecutor, could not bid at such sale to acquire such stock for itself. Erbe, appeared in said accounting proceeding and filed objections thereto, objecting to defendant bank's claims against testator's estate, and joining in other objections to the sale of the estate's Yawman & Erbe stock as proposed by the executors, and to the purchase thereof by defendant bank, and charged that the executors were acting in bad faith in an attempt to secure control of the Yawman & Erbe Manufacturing Company. The defendant bank also set forth its claims against testator's estate. ![]() The complaint and the undenied facts set forth in the affidavits in support of the defendants' motions further show that in 1941 the said executors filed an account of their acts as such in Monroe County Surrogate's Office and petitioned for the judicial settlement thereof, and therein they stated that it was necessary to sell the estate stock in Yawman & Erbe Manufacturing Company in order to pay debts and distribute the estate that it was proposed to offer the stock at public sale that defendant bank bid for such stock at the sale, and that if it were the successful bidder, permission was asked to pay the bid price by offsetting the same against the amount which it should be determined testator's estate owed to the bank. ![]() The executors of the testator retained the Yawman & Erbe stock in his estate, and voted it in connection with the election of directors for Yawman & Erbe Manufacturing Company. In the lifetime of said testator, Gustav Erbe, he and members of his family became indebted to the defendant bank, and some shares of Yawman & Erbe stock, not owned by the testator, were pledged to defendant bank to secure payment of such indebtedness. ![]() The business of this corporation during the 1930's was not prosperous the stock was closely held, and there was no ready market therefor. The principal assets of the estate of said testator were shares of preferred and common stock in the Yawman & Erbe Manufacturing Company. The plaintiff, Gustav Erbe, Jr., and the defendant, Lincoln Rochester Trust Company, through a predecessor corporation, with others became executors and trustees of the will, which made provision for the widow for life, with remainder to decedent's issue. The plaintiffs are the persons interested in the estate of Gustav Erbe, deceased, who died in 1931. On this motion the court assumes that the allegations of fact therein can be established by proof and are true. The amended complaint contains extensive allegations. Defendants have moved for dismissal of the amended complaint herein under rule 107 of the Rules of Civil Practice on the grounds that a final decree in Monroe County Surrogate's Court determined on the merits the same issues presented by the amended complaint as between plaintiffs and defendant, Lincoln Rochester Trust Company, and is res judicata as to them, and that the Statute of Limitations has run against the plaintiffs as to all of the defendants. ![]()
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