Amason's Estate, Matter of

• Decision Date: 06 April 1979
• Citation: 369 So.2d 786
• Parties: In the Matter of the ESTATE OF Thomas R. AMASON, Deceased. Elaine A. WALKER v. Nettie T. AMASON and Marion Clyde Amason. 77-526.
• Court: Alabama Supreme Court

Page 786

369 So.2d 786

In the Matter of the ESTATE OF Thomas R. AMASON, Deceased Elaine A. WALKER v. Nettie T. AMASON and Marion Clyde Amason.

77-526.

Supreme Court of Alabama.

April 6, 1979.

William B. Hairston, Jr., Birmingham, for appellant.

J. H. Crow, III, Birmingham, for appellees.

BEATTY, Justice.

This is an appeal from a court decree which removed the appellant, Elaine A. Walker, as trustee of a testamentary trust created by the will of her father, and which divided and distributed funds from a savings account held jointly by the appellant and appellee, Nettie T. Amason. We reverse and remand.

In 1967 Thomas Amason executed a will in which he left his estate to his daughter, Elaine A. Walker, in trust, to be used for the comfort and support of his wife, Nettie T. Amason. The pertinent portion of that will provided that:

All of the rest, residue and remainder of my property of whatsoever kind and character, whether real or personal, and wheresoever situated, I give, bequeath and devise unto my daughter, Elaine A. Walker, as Trustee, in trust nevertheless, for the uses and purposes, upon the terms and conditions, and with the powers and duties hereinafter stated.

(a) I direct that the said Trustee shall hold and manage said property for the use and benefit of my beloved wife, Nettie Ann Amason, for the remainder of her lifetime. During the life of my said wife I direct that the Trustee shall use so much of the income from said property as the Trustee in her sole judgment shall deem to be necessary for my wife's comfort and support and if in the judgment of my said Trustee the income from said property is not sufficient for said purposes then the Trustee is hereby authorized and directed to use whatever amount of the principal or corpus of said trust for said purposes as she in her sole judgment deems to be necessary. It is my intent that my wife shall be well provided for and that as long as she lives that she shall not want for any of the necessities of life, including the best of medical care as long as she may live even though such comforts and care would use and consume all of the trust estate herein created. Upon the death of my said wife, . . . the remainder of said trust estate shall be distributed (b) . . . equally to my children who are then living, share and share alike and to the children of any deceased child of me (sic) in equal shares per stirpes.

In 1969 Thomas Amason directed his daughter, Elaine A. Walker, to open a joint savings account in her name and in the name of her mother. In this account there were placed monies belonging to Thomas and Nettie Amason.

After Thomas Amason's death, Nettie T. Amason lived for a time in a trailer park, then a nursing home before moving in with a son, appellee Clyde Amason. Shortly after moving into her son's home, Nettie Amason requested that Mrs. Walker give to her "my money." Mrs. Walker refused. Thereafter, Mrs. Walker, as co-executrix of the estate, filed a petition for final settlement of the estate of her father. She also petitioned the court to rule that the monies paid into the joint savings account constituted an implied trust to be used by her pursuant to the terms of her father's will. Nettie Amason and her son, Clyde a co-executor of the estate counterclaimed for the savings account monies and asked for removal of Mrs. Walker as trustee.

The testimony at trial showed without dispute that the savings account, established during Thomas Amason's lifetime, was made up chiefly of Mr. Amason's black lung benefits and the installment payments from the sale of the Amasons' jointly owned home. Incidental monies, however, were also included: money saved by the couple from their separate social security income, and Mr. Amason's miner's pension. The actual amount of each party's contribution was not determined by the court and is not determinable from the record. It does appear from the record that after Amason's death the installment payments from the sale of the home were no longer paid into the joint savings account but were paid into the estate (trust) account. Additionally, Mrs. Walker in December, 1974, closed the joint savings account and paid those funds into the trust account.

On February 24, 1975 the outstanding balance on the house note, $5,860.00, was placed in escrow with the Alabama Title Company pending the outcome of these proceedings. The deputy register had determined that of those house proceeds received between Amason's death and February 24, 1975, $720.00 (1/2 the proceeds) belonged to Nettie Amason.

Testimony also showed that while Mrs. Amason receives over $400.00 monthly, principally social security, no monies had been paid to her by Mrs. Walker out of the trust funds since 1972. Nor had Mrs. Amason received funds from the joint savings account except for $25.00, and one or two months support in 1974 while she was in the nursing home. There was, however, little or no evidence offered on Nettie Amason's needs. Clyde Amason testified that while his mother drew about $420.00 a month from social security it would take $650.00 or $700.00 for him and his wife to reasonably take care of her, although testimony had established only $575.00 a month had been paid to the nursing home while she was a patient there. Clyde Amason testified further that the difference in the $700.00 he felt was necessary and the $420.00 a month Nettie Amason received from social security would pay for the trips he and his wife made each month taking Mrs. Amason to the beauty shop, grocery store, etc. His testimony showed, however, that his mother, Nettie Amason, pays for her own food, clothes, cosmetic and beauty shop needs, legal fees and incidental necessities and even then, Mrs. Amason had managed to accumulate from her social security payments $800.00 in savings. Furthermore, when Clyde Amason was asked what he intended to do with any money awarded his mother by order of the court, he stated that he would hold onto it because his mother was still in good health.

On March 16, 1978 the trial court handed down a decree which, as later amended, stated in pertinent part:

The Court concludes form (sic) the evidence that Nettie Amason is fully competent to manage any monies which may be allotted to her from the trust. In spite of her years, she is energetic and knowledgeable.

Further, The Court finds that Elaine A. Walker, Trustee, has performed the duties of the Trustee in a commendable manner. However, on account of the change of the residence and living habits and requirements of Nettie A. Amason, it is to the best interest of all parties that Elaine A. Walker be relieved of her duties as Trustee. The performance of the duties of a Trustee are often onerous and thankless. By the removal of Elaine A. Walker as Trustee, The Court does not mean to imply, in the slightest degree, that she has been remiss in the performance of her duties as Trustee. (emphasis added)

The issues heard being submitted upon the pleadings and upon testimony ore tenus it is now hereby CONSIDERED, ORDERED, ADJUDGED and DECREED by the Court as follows:

That Elaine A. Walker is hereby ordered to pay over to Nettie A. Amason the sum of Seven Thousand Dollars ($7,000.00), which sum represents a part of the proceeds of a savings account which was held jointly in the name of Elaine A. Walker and Nettie A. Amason until such time as Elaine Walker withdrew the funds contained therein and the additional sum of Seven Hundred Twenty and no/100ths Dollars ($720.00) which represents the sum of monies found due Nettie Amason by the Deputy Register in his Report of February 21, 1975, that the balance of funds in the hands of Elaine A. Walker in the amount of Seven Thousand Ninety and 77/100ths Dollars ($7,090.77) together with any interest accrued thereon from October 24, 1977 shall be paid over by Elaine A. Walker to the successor Trustee named herein to become a part of the trust estate.

EIGHT: Elaine A. Walker is hereby removed as the Trustee of the Testamentary Trust of Thomas R. Amason, Deceased, and this Court hereby appoints Honorable Harold Goings to serve as successor Trustee of said Trust. Said successor Trustee is hereby directed by this Court to pay the sum of TWO HUNDRED DOLLARS ($200.00) per month unto Nettie A. Amason for her support and maintenance until said monthly payment, within the sound discretion of said successor Trustee, becomes inadequate or excessive due to changed circumstances. . . .

Mrs. Walker's motion for a rehearing was thereafter denied and this appeal followed.

In effect this appeal is based upon dissatisfaction with (1) the removal of Mrs. Walker as trustee, and (2) the treatment of those funds that were once part of the joint savings account. We will discuss these areas of controversy separately.

Removal of Trustee

The removal of a trustee has long been established as a matter which rests in the sound discretion of the trial court. Our scope of review is therefore limited to determining whether the court has abused its discretion. Ingalls v. Ingalls, 257 Ala. 521, 59 So.2d 898 (1952); Ex parte Jonas, 186 Ala. 567, 64 So. 960 (1914); 90 C.J.S. Trusts § 234 (1955) at 205.

Mrs. Walker argues that the court abused its discretion in removing her for grounds not found within Code of 1975, § 19-3-211. We do not find this to be the case. Section 19-3-211 states Inter alia that "the circuit court may remove any trustee who has violated or threatened to violate his trust; . . . or who for any cause, is an unsuitable person to execute the trust . . . ." This statute has been held to be merely a declaration of the law as it existed when that statute was enacted and not a limitation upon the power of a court to remove trustees. Ingalls v. Ingalls, supra; First National Bank v. Ingalls, 257 Ala. 536, 59 So.2d 914 (1952); Ex parte Jonas, supra. Mrs. Walker then would have us find an abuse because of the insufficiency of the grounds for removal...