104 Ky. 825 | Ky. Ct. App. | 1898
delivered the opinion of the court.
Charles Grundy died, testate, in the year 1881, and his, sons, Thomas and Palmer Grundy, and his brother, Samuel R. Grundy qualified as executors on the 24th day of October, 1881, executing their own bond, without security. By the terms of the will, Samuel R. Grundy was not only named as executor, but also trustee of testator’s daughter, Mrs. Tucker; and he qualified as trustee, with Thomas S, and Palmer Grundy as sureties, on October 25, 1881, in the-County Court of Washington county. On June 22, 1882,. •he filed in the same court his resignation as trustee, but no order has been made by that court discharging him from the trust. On November 24, 1883, the executors made a settlement of their accounts in the County Court, which showed that there was going to each of the three children of Charles Grundy, to-wit, Thomas S. Grundy, Palmer Grundy, and Mrs. Tucker, $6,735.76. On August 21, 1884*
After the return of the case to the Circuit Court of Washington county, no further steps were taken therein until the September term, 1891, when the case was ordered to be reinstated upon the equity docket; At the March
After the return of the cases to the lower court, Samuel R. Grundy’s executor and Palmer Grundy both filed answers. Samuel R. Grundy’s’ executor denies any liability by reason of having qualified as trustee, because the County Court of Washington county had no authority to take any bond as trustee, and that Thomas S. Grundy, one of the executors of the wall of Charles Grundy, had, in fact, handled, collected, and managed the estate of Charles Grundy, deceased, under his will; that he did not receive or handle any of the assets; and that the executors had never at any time set apart any of the funds or assets in their hands for the benefit of Susan Tucker; and further relied upon the fact that on the 17th day of March, 1881, Susan Tucker and her husband, James IT. Tucker, had appointed Thomas S. Grundy trustee, instead of S. R. Grundy; “that
The first defense relied on is the plea of plene adminis'travit, it being contended by both defendants that Thomas S. Grundy was the real executor, and had charge and control of all the assets, to the exclusion of the defendants.
In this case all the executors named by the will qualified, and, as authorized by the will, executed a joint bond, without security. They made a general settlement of their accounts; and they jointly resisted the suit of Mrs. Tucker, filed in August, 1884, in which she alleges that “the estate of her father had been settled, and the ’money paid over under the will, except the third due to her, which still remains in the hands of said executors.” There was no claim at that time by Palmer or Samuel R. Grundy that this fund was not in their hands as executors; and it was upon this state of fact that the judgment of the Circuit Court was reversed by this court, in .January, 1886, and the cause remanded, “with directions to hold the executors responsible for this fund in their hands for the use of Lucy
In this case, Palmer and Samuel Grundy knew that this
The next defense relied on is that on the 17th day of March, 1884, Susan Tucker and her husband appointed Thomas S. Grundy trustee, in place of Samuel R. Grundy, by the following paper: “Whereas, Charles Grundy, by his will, which is of record in the Washington county clerk’s office, vested certain funds in Samuel R. Grundy in trust for the benefit of Susan G. Tucker, on terms stated in the will, and said S. R. Grundy declines to act as trustee, and the fund aforesaid is in the hands of the executors: Now. therefore, in order to carry out the purpose of said trust as near as may be, and render the fund productive, the said Susan G. Tucker and her husband, James H. Tucker, do hereby appoint Thomas S. Grundy trustee in the room and stead of S. R. Grundy; and the said Thomas S. Grundy- accepts said trust upon the following terms, that is: He is to remain as trustee for three years, provided he chooses to continue for that time, but he reserves the right to resign at any time by leaving with the Washington county clerk a writing declaring his resignation, and then giving notice thereof to the said Susan G. Tucker. While this trust continues, the trustee aforesaid is to pay all taxes upon the trust fund, and is, in addition, to pay said Susan G. Tucker annually four per cent, upon the amount of the principal fund. Out of the four per centum the said Susan G. Tucker is to pay annually, to the widow’ of Charles
It is argued by appellants that appellees had no interest in this fund under the will of their grandfather; that, upon the death of their mother, her surviving husband became the beneficiary thereof; and that, therefore, after her death, the fund remained in the -hands of Thomas S. Grundy, as bailee for the use and benefit of the children of Mrs. Tucker, free from all trust character. We can not concur -in this contention. Appellants became liable for the security of this fund when they qualified as executors of the will of 'Charles Grundy, and they can only be discharged by a performance of the duties imposed upon them, to see after the safety of the trust fund; and this obligation continued, notwithstanding the death of Mrs. Tucker.
Several other questions are suggested by the brief of counsel, but, upon the whole case, we are of the opinion that the demurrers were properly sustained. The question raised by the contention of Palmer Grundy, that Samuel R. Grundy’s estate should answer for the whole of this fund, is not properly before this court on this appeal; nor are the issues raised by the exceptions to the master commissioner’s report. The judgment for $5,000 appealed from
On February 9, 1899, the following extension of the opinion was delivered by the court:
After the case of Palmer Grundy, etc., against Nannie T. Drye, etc., had been briefed and submitted, Palmer Grundy filed with the derk of the Court of Appeals a copy of the judgment of the court below sustaining the demurrer of Mrs. Sallie Grundy to his amended answer and cross petition, and the clerk granted him an original appeal; and counsel agreed in writing that as the records and parties were identical the two appeals could be heard together. In considering the case of Palmer Grundy, etc., against. Nannie T. Drye, etc., the fact of the granting of the subsequent appeal was not called to the attention of the court, and for that reason was not considered in the opinion heretofore rendered in this case; and we are asked by counsel for both parties, in the petition for rehearing, to pass upon the question raised by the amended answer and cross petition of Palmer Grundy against his co-defendant, Samuel R. Grundy’s administrator, in which it is alleged that as Samuel R. Grundy was appointed by the will trustee of the fund devised by Charles F. Grundy to his daughter, Mrs. Tucker, and qualified thereunder, he was' not released by his resignation and failure to collect the fund, that the sole responsibility for this trust fund rests upon his estate, and that it alone should be held liable therefor. As stated in the original opinion herein, this record shows that Thomas 8. Grundy, Palmer Grundy, and Samuel R. Grundy all qualified as executors of the will of Charles F. Grundy on October 25, 1881, and that on the same day Samuel R. Grundy qualified as trustee of Mrs. Tucker, with Thomas S. and Palmer Grundy as his sureties, and that on the 22d
Appellant undoubtedly at this time knew of and recognized his liability on this bond, and not only failed to take any steps to have a trustee appointed to take charge of the fund, but consented to still further delay in the settlement of the trust. It seems to us, upon all the facts in evidence in this record, that the judgment of the chancellor sustaining the demurrer to the answer and cross-petition of Palmer Grundy against Samuel R. Grundy’s administrator was proper, and that judgment is affirmed and the petition for rehearing overruled.