116 Ky. 381 | Ky. Ct. App. | 1903
Opinion op the court by
Affirming.
W. H. Stites was entitled to one-eighth in remainder of a sum of about $75,000 bequeathed by one Gervas Lenox Taylor, of Dublin. Ireland. Mrs. Elizabeth Stites, mother .of W. H. Stites, was the life ienant. On July 18, 1895, W H. Stites, by a hill of sale, conveyed this interest to his mother, in consideration, it is alleged (and, for the purpose of this appeal, accepted), of $6,5S9.13 paid to him. On August 20, 1S95, Mrs. Elizabeth Stites, for what real consideration is not shown, executed- to appellant trust company a deed of trust conveying to it the said undivided one-eighth interest in remainder in said fund, to hold the same in trust as follows:
“First. Out of the principal of said share, when received,said second party shall pay the sum of three hundred ($300) dollars, with interest from July 18th, 1895, advanced to said W. H. Stites.
“Second. And shall pay to the personal representative of said Elizabeth Stites the sum of twelve hundred and twenty-four and sixty-one hundredths ($1,224.61) dollars without interest prior to her death.
“Third. The residue of said fund shall be invested by*389 said second party as trust funds are invested under the laws of the State of Kentucky, and the net. income therefrom paid in 'equal monthly installments to said W. H. Stites, to be by him expended for the benefit of his children and family without any liability of accounting therefor, and on his death the principal shall pass in fee to his' children, the issue of any children who may die leaving children to take their parent’s share, with power in said W. H. Stites t'o appoint same among his children by will. Should he survive all of his present children, the said W. H. Stites may, if he so elect, demand and receive from the said trust company the principal of said fund, and, in default of his exercising said power, the same shall at his death pass to ■such persons as he by last will and testament may designate, and if he should leave no will, it shall then pass to his heirs at law under the statutes of descent of the State of. Kentucky.
“Provided, that at any time after said, life estate ends and said second party receives said fund, said W. H. Stites shall affirmatively show to said trustee that he is not indebted to any person in any sum whatever, the said income may be paid to him for his own exclusive use and benefit, if he shall so elect, and provided further, that if the income ’from said funds is less than fifty ($59)' dollars per month net, the said second party, if said W. H. Stites shall so elect, shall pay to him in trust or in fee as hereinbefore’ directed the sum of fifty ($5*0) dollars per month so long as said trust fund shall last, and charge the amount of . such payment over and above the income to the. principal.”
Prior to the transfer by TV. H. Stites to his mother on July 18, 1895, he was bound to appellee in the sum of about $1,700, evidenced by a judgment of a court of general juris
What interest did W. H. Stites take under the terms of the trust deed from Elizabeth Stites to the trust company? What are the legal rights of appellants, W. H. Stites’ children, under that deed? The answers to these questions decide this case.
In the first place, it is to he observed that the total net income from the principal is to be paid over to W. H. Stites by the trustee. He can expend it upon himself and the other members of his family,- including his children, in such . manner as he pleases. No one — not the children, nor the trustee, nor any one else — is permitted, by the express prohibition of the deed, to call him to account for the manner in which he uses or disposes of this income. If the income is not $50 per month (and it is not, and will not probably be), then he is likewise empowered to consume the principal so as to produce to him an income of at least $50 per month from this fund. In the next place, W. H. Stites may by will dispose of the principal after his death, being restricted only to his own children and offspring, but being permitted to discriminate among them. Should he survive all his present children, he may then demand and receive as his own the principal, or he can dispose of it absolutely by will, or, if he dies intestate without having consumed it, it goes to his heirs at law. The only point of distinction' between the estate thus created in the fund, and the absolute estate therein, is that, if any of W. H. Stites’ children survive him, they would take the unexpended principal, sub
In the very excellent brief of able counsel, appellants properly insist that every part of the instrument, and all of its provisions equally, if possible, be considered in arriving at the intent of the settlor, which must control so far as it is not repugnant to the law. Applying this rule, one can not escape the conclusion that the person whose interest was studiously sought to be conserved in every line and provision of the trust was that of TV. H. Stites. With the fullest possible right of personal enjoyment, with privilege of disposing of any surplus' at his death in the manner most natural and most likely to be desirable, little more could have been added to the completeness of his title. The interest of his children, if it can be said that they had any but a contingent one, was made to depend upon the natural instinct of their father to aid them as he might judge to be ■proper, having regard to his conception of his own interests and the natural claims of other members of his family. This, at last, is precisely the “interest” that all children naturally have in their parents’ property during the lifetime of the latter.' It can not be said then that the children took a legal estate in the income of this fund. If this were a proceeding by a creditor of W. H. Stites’ children to subject their interest in the fund, what part of it could the chancellor lay hold on, and say it was liable? In Pope’s Ex’rs v. Elliott, 8 B. Mon., 56, it was held that where the executors were not compelled to pay a sum of $25 per month to the support of a devisee, but were authorized to do so in their discretion, the interest of the devisee could not be subjected. In Cosby v. Ferguson, 3 J. J. Marsh., 264, a sum
We hold that W. H. Stites took the beneficial interest in the principal funds in the hands of the trust company as trustee, to the extent at least of the right to receive $50 per month therefrom in any event. It was therefore not improper to have subjected that interest so far as was neces
Judgment affirmed.
Petition for rehearing by appellant overruled.