78 Ky. 297 | Ky. Ct. App. | 1880
delivered the opinion of the court.
T. T. Shreve, by his last will and testament, devised to. his children a large estate, and by its provisions, after making certain specific devises, placed one half of the share devised to each child under the control of a trustee, with the direction to those dividing his estate to so allot one half of each share as to make it income-paying real estate. This half share, or rather the income to be derived from it, was devised to each child for life, remainder to his or her children, the rent to be paid by the trustee to the life tenant quarterly, after paying taxes, insurance, and keeping the property in
Other creditors of C. U. Shreve had executions levied on this estate in the hands of the trustee and sold for their debts.
The widow and children of C. U. Shreve came into the ■case, alleging that, under the provisions of the will of T. T. Shreve, the income of that portion of the estate held by the trustee was for their benefit as well as that of the husband ■and father, and could not, to the extent of their interest, be subjected to the payment of his debts. The assignee or trustee of C. U. Shreve claims that the entire income passed to him under the conveyance made for creditors.
The nature and extent of the interest derived by the children of C. U. Shreve under the will of their grandfather, is the principal question in the case, and will be first considered. It is only necessary to notice the provisions of the will bearing on this question.
Clause 9th. “After the foregoing special devises, I wish •all of my estate, of every character and description, real, personal, and mixed, of which I may die possessed, to be •divided into five equal parts, having due regard to kind, quality, and income-bearing, apportioning to each share its fair proportion to each kind.'
“loth. After said division shall have been made, I will 'that two fifths of same be alloted to my two children, Charles U. Shreve and Mary E. Goodloe, one fifth to each, subject to such conditions as hereinafter named.
“ 12th. As soon after my death as it can be conveniently done, I wish my executor, hereinafter named, after first setting apart a fund sufficient to pay the above-named special devises and incidental expenses, to make out a full and complete list and schedule of all my estate, of every character and description, real, personal, and mixed, in the state of Kentucky and elsewhere, and hand the same to the following named persons, to-wit: James H. Henning, A. C. Rodgers, and A. Harris, who, or any two of whom, I desire to> proceed to value it, and divide it into five equal shares, upon the principle hereinbefore indicated. One half of each share (which half I wish to become paying real estate) I desire to be set apart and conveyed to a trustee, to be held for the use and benefit of each child during his or her life, and then to descend to his or her heirs, without any power or right on the part of said child to encumber said estate or anticipate the rents thereof; but said trustee shall collect said rents, and after paying taxes, insurance, and keeping the property in repair, pay the rent to the child in person quarterly, or as the money may be collected, according to the terms of the lease. The other half of such share I wish conveyed to each child in fee, to do with as jhe or she may please. In placing these restrictions on one half the estate I give my children, I do not wish it understood that I distrust their capacity to manage their own affairs, for I do not; but I believe that one half of a share that each will receive will afford ample means to commence and conduct a respectable
After directing the manner in which the trustees shall be appointed, &c., the testator proceeds: “It is true, I give to my two oldest children rather more than I give to my younger children; but my reason for doing so is, they are grown, and having families of their own, their present necessities are much greater; and if the interests of my younger children are reasonably well looked after, and properly cared for after supporting, clothing, and educating them, their •shares will be much larger than the two. other children by 'the time they become of age,” &c.
That it was the intention of the testator to place the income'from the one half share devised to a trustee for the benefit of his son, C. U. Shreve, beyond the reach of the latter’s creditors, will scarcely admit of controversy, and that the widow and children of C. U. Shreve acquired no bene'ficial interest in it is equally certain. The motive influencing the devisor to give to the children by his first wife more than 'the children of his last wife can raise no implied trust in ■ favor of those who are not even mentioned in the will, nor 'will the placing of one half the estate devised to C. U. • Shreve in the hands of a trustee imply a purpose on the part ■of the testator to vest the children of his son with a beneficial interest. The testator gives to his son an estate in fee 'in one half of the share devised, and as to the other half, he ■.gives him the annual income for life, remainder to his chil- ■ dren, with the direction to the trustee, after paying taxes, -insurance, and the expense of keeping the devised property
The testator felt that he had provided for his son a ••co77ifo7'table livÍ7ig, as he expresses it in the will, when he devised this estate or the control of it to a trustee, and "the words co77tforiable living have as much application to •the children who were without children and unmarried as
It appears that the testator had given the children of his-first wife more of his estate than to his younger children, and in assigning a reason for being more liberal to the former, he says: “ But my reason for doing so is, that they are grown, and, having families of their own, their present necessities are-much greater.” From this language, connected with the provisions of the will already alluded to, it is argued that a trust must be implied in behalf of the appellants. If a mere motive influencing the action of the devisor in making-the gift, or the reasons assigned solely for the purpose of convincing the children of the testator that he has not only been liberal, but just in the disposition of his estate, is to be seized on by the chancellor as creating an implied trust in a case-like this, it would so enlarge the rule in the construction of wills as to divest the beneficial use of the gift without regard to the plain intention of the testator. The wisdom and policy of the doctrine creating implied trusts has always been questioned, and while we do not recognize the rule of construction as impolitic or unwise, it should never be enlarged in its application to relieve the hardship of a particular case. The true rule is the intention of the testator, to be ascertained from the whole context of the will. This intention must govern, and no trust will be implied where no such intention appears.
There is no difficulty in arriving at the testator’s purpose in this case. His sole object seems to have been to secure this income to his son as against any creditor he might have, and failing in this, the chancellor will not imply a trust for -.the children in order to secure the estate to the father. The
Yet, in Hill on Trustees, page 73, fourth American edition, we find the following rule:
“Precatory words will not be construed to confer an absolute gift on the first taker merely because of failure or uncertainty in the object or subject of the devise.”
It is difficult to lay down any rule applicable to the doctrine of implied trusts. “Every case,” says Perry, “must depend upon the construction of the particular will under consideration; ” and in carefully considering the various provisions of the will before us, we are satisfied the testator never intended to impose an obligation on his son to apply any part of the income from this real estate to the support of his family. While the trustee must hold and control this property, after paying the insurance, taxes, and keeping the property in repair, he may be required to pay over the net income to •creditors as the rent falls due.
The income of the estate, as it becomes due, being liable In the hands of the trustee for the payment of debts, the remaining question to be determined is, does the conveyance to J. M. Shreve by C. U. Shreve of his estate, for the benefit; •of creditors, embrace by its terms the income of this trust property? and if answered in the affirmative, it becomes unnecessary to determine the questions raised between the •attachment and execution creditors. The grantor, C. U. Shreve, sells, conveys, and transfers unto the party of the .second part, J. M. Shreve, “all the real, personal, and mixed property owned by the said party of the first part not exempt from execution, and which is as follows,” &c. The grantor then proceeds to designate the property that he has granted and transferred to J. M. Shreve, the trustee, including lands.
‘ ‘ If, after all the debts shall have been paid, there shall be ■■any property unsold or any money on hand, said money and ■property shall be returned by said trustee to said party of ■the first part; it being the object and intent of this conveyance to transfer to said second party all the property belonging to said party not exempt from execution for the benefit of all 4he creditors of the first party,” &c.
It is evident that the property conveyed by this deed is not limited or restricted to the property specifically described. The grantor undertakes, in the first place, to sell all of his property, real, personal, and mixed, and then produces a -list of the property he claims to own, and, for fear he has omitted to convey or transfer property owned by him and not mentioned in the list, he directs his trustee to sell any property owned by him that may have been omitted, it being his p’urpose to transfer and convey all of his property not -exempt from execution for thfe benefit of creditors.
These last explanatory clauses but give the meaning to •the granting clause of the deed, showing clearly that when :the grantor used the words sell and convey all my property,
The judgment on each appeal is affirmed.