111 Ky. 847 | Ky. Ct. App. | 1901
Opinion of the court by
Affirming.
By the will of Catherine Aydelott the appellant was devised certain property in trust for the appellee, Addie M. Breeding, upon the conditions that he or his successor should hold, manage, control, invest, and reinvest the same, and the proceeds of any and all sales thereof, and pay over to the daughter, Addie M. Breeding, all of the income arising from and issuing out of same, after payment of taxes and other charges thereon; the same to be for her sole and separate and exclusive use during- each and every year of her life, to be received and held and used and enjoyed free from all marital rights of any husband she may have, and free from any control of such husband. Said trustee was fully empowered to sell or dispose of any part or portion of said property and estate, whether real or personal, and to invest and reinvest the proceeds of such sale whenever and so often as he may deem advantageous and expedient so to do. At the death of the said daughter the property was to be divided among- her children, if any, or their heirs; and, in the event of her dying without descendants, the property should revert to appellant and his brother, Geo-W. It appears that this will was pro-bated on the 4th day of November, 1899, and that soon thereafter the appellant qualified as trustee under the will, and entered upon the execution of the trust. Some time after 1890 he purchased two New Al
One of appellant’s contentions is that the securities in. which he invested the trust fund were by the best financiers and business men regarded as a safe and prudent 'investment, and that he so regarded it, and that he in. good faith was acting for the best interest and protection of the trust fund, as he saw at the time, and therefore the loss should fall upon the trust estate, and not upon him individually. It may be conceded that the proof conduces strongly to show that the aforesaid securities were’
It is argued for appellant that his attorney’s fee in this case should be paid out of the trust estate, and that he ought not to be taxed with the costs of this suit. But,, inasmuch as he failed to obtain the relief or object sought by the institution of this suit, it seems to us that the court properly refused to allow him his attorney’s fee, and did not err in adjudging the costs of the suit against him. Of course, for proper services, independent of this suit, he would be entitled to proper attorney’s fees for any services necessarily rendered for him as trustee by an attorney. Complaint is also made of the judgment withholding commissions until he restores to
The contention of appellant that he made the investments in question at the instance of appellee is1 not sufficiently sustained by the evidence, and, if it were, it may well be doubted whether a request upon her part to make the investment would relieve appellant from the responsibility of the loss incident thereto. Certainly her acquiescence in the investment would not have such an effect.
For the reasons indicated, the judgment is affirmed.