168 Ky. 822 | Ky. Ct. App. | 1916
Opinion op the Court by
— Affirming.
This is a suit by Willie Winlock Newberry to enforce a trust against the estate of her father, Doctor J. T. Winlock. Being denied the relief prayed for, she appeals.
Doctor.Winlock first married Josie Simmons. Willie Winlock, now Willie Winlock Newberry, was their only child. Josie’ Simmons Winlock inherited from her father personalty of the value of $433.65, which, on December 15th, 1890, she loaned to her two brothers, S. S. and W. .E. Simmons. She also sold to them her interest in her father’s land for $1,133.60 and took therefor their note, dated February 1st, 1891, and payable to her. S. S. Simmons, one of the borrowers, testified that Mrs. Winlock was anxious for him and his brother to keep the money if they needed it, but they paid off the notes as fast as they could and Mrs. Winlock said that Doctor Winlock could lend it down there as well. Mrs. Winlock also said that she wanted it held for Willie, who was then a child in school; that the doctor had plenty to educate her and she wanted it kept for her, because in the course of time it might possibly be of benefit to her. To this Doctor Winlock agreed, and stated that he would hold the money for Willie and would have no trouble in lending it out. Mrs. Minnie Simmons, wife of S. S. Simmons, testified that when Willie was married, she and her husband went to the' wedding, and in the evening after Willie and her husband were gone, Doctor Winlock
It further appears that E. T. Winloek, a brother of Doctor Winloek, died in the year 1901, leaving a last will and testament, by which be devised all of bis property to bis niece, Willie Winloek, with the provision that it should go to the heirs of ber body if sbe should bave heirs, but if sbe should die without heirs, to bis brothers, J. T. and J. R. Winloek. Doctor Winloek was appointed executor of bis brother’s estate. The personal property was appraised at $867.11, which was turned over to Willie Winloek. At that time E. T. Winloek was indebted to Doctor Winloek in the sum of $7,315.37, and possibly more. Evidently for the purpose of investing Willie Winloek with absolute title to the land which the testator owned, the doctor, instead of cancelling bis debts, permitted the land to be sold. It was purchased by Mrs. Newberry for the sum of $6,428.26 and bond executed for the purchase price. Doctor Winloek and Mrs. Newberry, through ber husband, bad some kind of a settlement, and the doctor wrote the commissioner as follows:
“You will mark the sale bond in the above styled action satisfied by agreement between myself and T. P. Newberry and wife.”
There was found among the doctor’s papers a note for $2,448.87, signed by T. P. Newbérry and wife, dated May 8th, 1909, and credited by payment of $500.00, paid February 28th, 1913, and $350.00, paid September 17tb,
Some time after his first wife’s death Doctor Winlock married a second time. Of this marriage there were born five children. The doctor died in December, 1912, leaving a will by which he devised his property to his second wife and her children. His will contains the following provision:
“My oldest daughter, Willie Bell Newberry, has already been provided for out of my estate as the settlement of the estate of E". T. Winlock will show, and it is my desire that she shall not share any further in my estate.”
At the time of the doctor’s death his estate was worth between $25,000.00 and $35,000.00. It also appears that Mrs. Newberry and her husband were worth between $20,000.00 and $25,000.00.
The argument for plaintiff is as follows: The evidence is sufficient to establish a trust. Being an express and continuing trust, the statute of limitation does not apply. The plea of accord and satisfaction is not sustained because Doctor Winlock’s will very clearly shows that the property which he gave to his daughter in settlement of E. T. Winlock’s estate was not paid in settlement of the trust, but was an advancement out of his own estate. In support of this contention the point is made that Mrs. Newberry in that settlement received only $6,428.26, less a $2,400.00 note, and as the trust fund at that time amounted to about $3,000.00, she, in fact, received from her father’s estate only $700.00 or $1,000.00, when her father said in his will that she had already been provided for out of his estate. As a matter of fact, however, the doctor’s claims against E. T. Winlock’s estate amounted to $7,315.37. The personal property amounted to $867.11. The doctor could have purchased the land himself and have not been out a single dollar. He does not state in his will that Mrs. Newberry had received her portion of the estate. He merely states that she had been provided for. As a
Judgment affirmed.