136 Ky. 157 | Ky. Ct. App. | 1909
— Reversing.
In a suit for divorce and alimony, which. Daisy Montgomery instituted against her husband, Staiar Montgomery, in the Scott circuit court, a judgment of divorce was granted on February 6, 1904. The part of the judgment relating to alimony is as follows: “It is further adjudged that the plaintiff recover of the defendant alimony at the rate of $150 per year from the date of this judgment, payable in semi-annual installments, for which installments the plaintiff may have execution as the installments fall due or may proceed against the defendant by rule. These installments of alimony are to continue until the further order of the court.” After that judgment was entered, Daisy Montgomery married S. S. Offutt, and Staiar Montgomery also married again. No part of the allowance of alimony having been paid her, on June 1, 1908, she took' out an execution for $660.40, the amount accrued up to that time. The execution was returned no property found. Thereupon she instituted this suit against Staiar Montgomery, in which she undertook to subject to the judgment certain property devised to Harry Montgomery, in trust for Staiar Montgomery, by his father, H. P. Montgomery. The court sustained a demurrer to the defendants’ answer, and entered a judgment for the plaintiff as prayed. The defendant appeals.
In the case of Franck v. Franck, 107 Ky. 362, 54 S. W. 195, 21 Ky. Law Rep. 1093, we had before us a judgment for alimony similar to that quoted above. In that case the wife had married again, and we held that no payment of alimony should be enforced sub
The next question in the case is whether the property devised by H. P. Montgomery may be subjected to the plaintiff’s claim. The will, so far as material, is as follows: “The remaining third .of my estate I give and devise to my son Harry Montgomery . in trust for my son Staiar Montgomery, but the proceeds of both land and personalty are to be paid to said Staiar Montgomery in whole or in part in the discretion of said trustee, it being my purpose that no part of my estate is to be subjected to any debts, claims, demands or judgments now existing against my said son Staiar, or any he may hereafter create or that may hereafter be adjudged against him. The said trustee may sell' any or all the lands and invest the proceeds thereof together with the proceeds of
It will be observed that by this will the proceeds of the estate are to be paid to Staiar Montgomery in whole or in part in the discretion of the trustee, and that Staiar Montgomery may dispose of the property by will. There is no devise-over. The property is devised to .Staiar Montgomery, and the trust is created simply in an attempt to shield it from his debts. The trustee could not under the will withhold from Staiar Montgomery the proceeds of the estate, and, if he undertook to do so, would be compelled by a court of equity to account-to him therefor. No other person has any interest in the proceeds of the estate. We had before us wills practically like this in Cecil’s Trustee v. Robertson, 105 S. W. 926, 32 Ky. Law Rep. 357; Bland v. Bland, 90 Ky. 400, 14 S. W. 423, 12 Ky. Law Rep. 532, 9 L. R. A. 599, 29 Am. St. Rep. 390; Marshall v. Rash, 87 Ky. 116, 7 S. W. 879, 9 Ky. Law Rep. 963, 12 Am. St. Rep. 467. In all of these cases the estate was held subject to the debts of the beneficiary, and this case .can not be distinguished from them. If the plaintiff’s demand can not be paid within a reasonable time from the income of the estate, the principal of the estate may be
The defendant pleaded, among other things, that his divorced wife had sued his brother for damages for alienating the affections of her husband from her, and that in settlement of this suit he had paid her &4,000, thus anticipating the income of his estate. The sum paid her in settlement of the damage suit has nothing to do with her claim for alimony, and should not be taken into consideration in fixing the amount due her, or in determining how it' is to be paid. This settlement was a distinct matter having no connection with the allowance for alimony. The court properly sustained the demurrer to this part of the answer. The defendant may be allowed to amend ■his answer on the return of the case if he desires to 'do so, and plead any other facts as to changed conditions making proper a modification of the order as to alimony. See Gerrein v. Berry, 99 S. W. 944, 30 Ky. Law Rep. 978.
Judgment reversed, and cause remanded for further proceedings consistent herewith.