185 Iowa 1064 | Iowa | 1919
Lead Opinion
The judgment debtor is the defendant Charles H. Kiffner. By the will of his father, he was a qualified legatee, to the amount of $10,000, to which a condition was attached that the sum should be held in trust, by Frank A. Kiffner, as trustee, to whom was given the full and unlimited power of control over such fund “as, in his discretion and judgment, may be deemed wise and prudent, without any restriction or restrictions whatsoever.” The trustee was specifically authorized to pay to Charles Kiffner, from time to time, such sum “as, in his judgment and discretion, may be deemed wise, prudent, and just for the welfare and well-being of my said son Charles H. Kiffner.”
It will be seen from the foregoing that the case involves a testamentary trust created by the testator for the purpose of the support of an improvident son. In its facts, the case does not differ materially from those involved in Meek v. Briggs, 87 Iowa 610. The decree of the district court was in harmony with our holding in the cited case. This case
The plaintiff first sought to reach the fund by garnishment of the trustee. Thereupon, this suit was brought, in aid of the garnishment. Later, the garnishment was dismissed, and equitable relief alone is now asked. If the grounds upon which plaintiff bases her equity suit are good, we see no reason why she might not have maintained a garnishment on the same grounds. As a ground for equitable relief, she avers that her debtor and the trustee are in collusion against her, to prevent the collection of her judgment. This allegation is a mere legal conclusion, and an erroneous
Dissenting Opinion
(dissenting). Somewhere, this appellant ought to have a day in court on the suit she tenders. Up to this time, all consideration, including that given by the majority, is devoted to denying claims which appellant has never made. The father of her husband made a will, bequeathing a sum of money to the son absolutely, so far as title thereto is concerned. The only limitation is that it shall be in the discretion of a trustee appointed when the fund, in whole or in part, shall be paid over, and that the trustee may pay it over whenever it is his judgment that such payment is for the good of the cestui. In other words, the eestui has title; the ancestor contemplates that he may be given possession, — does not forbid it; but the trustee is saved harmless, if he pay over, or if he do not pay over. It cannot be denied that, if the cestm gave someone an order upon the trustee, and the latter saw fit to honor it, that he has the right to do so. It cannot be denied that, if the trustee paid over all the fund to the cestui, and the latter deposited it in bank, the latter would have perfect title to the deposit, and execution issued on the alimony decree which his wife has, could effectively be levied upon the deposit. The appellant is not asking that the trustee be compelled to exercise his discretion, or she allowed to seize any part of the fund while the trustee has it. She applies to a court of equity to safeguard such rights as she will have when, if ever, the trustee shall elect to pay. She is met by
“True, my demand is not yet enforcible, and, therefore, my contract lien cannot yet be effectuated, but I can and will turn my demand into a judgment; then it will be a debt; my lien will be security for the collection of that debt. * * * You can make me wait in collecting until I obtain judgment, but you may not have it said that your lien is
What the plaintiff asks may not prove very helpful to her. Eliminating the question of what may be done if the trustee captiously or dishonestly refused to pay over, she may never get anything because the trustee elects not to pay over. But that the relief prayed may not be greatly helpful to the applicant is not an objection that lies in the mouth of either trustee or cestui. Equity has not usually been deemed an ally of dishonest purpose. To grant the relief prayed cannot possibly interfere with an honest act. So long as the trustee honestly refrains from paying over, the plaintiff seeks nothing, and can have nothing. What she does ask is effective only should the trustee exercise his power to pay over, and make the payment in such manner as to hinder and delay the satisfying of plaintiff’s judgment out of what has been paid over. What the majority affirms is a refusal to see to it that, if the trustee does turn over the fund to the cestui, the right to enforce the judgment of the plaintiff shall be assured. In my opinion, there should be a reversal, and a decree ordering that, while the trustee need not pay over until, in his discretion, such payment is for the good of the cestui, that, at the time of such payment, a lien shall attach to the fund surrendered, to the extent of the amount of plaintiff’s judgment.