Bland's Adm'r v. Bland

• Decision Date: 20 September 1890
• Citation: 14 S.W. 423,90 Ky. 400
• Parties: BLAND'S ADM'R v. BLAND et al.
• Court: Kentucky Court of Appeals

14 S.W. 423

90 Ky. 400

BLAND'S ADM'R v. BLAND et al.

Court of Appeals of Kentucky.

September 20, 1890

Appeal from circuit court, Hardin county.

"To be officially reported."

J. P Hobson, for appellant.

Bush &amp Robertson and E. D. Walker, for appellees.

HOLT C.J.

The administrator of Henry Bland having obtained a judgment and a return of nulla bona against the appellees, E. U and J. H. Bland, brought this action to subject to the payment of his debt property, or the profits thereof, which he claims is held in trust for them under the will of their sister, Maria Bland. The question is whether, under its provisions, they own any estate or interest which can be subjected by suit to the payment of the debt. The will provides: "(1) I bequeath and devise to the trustee hereinafter named, all the property not otherwise disposed of that I may possess and own at my death, real, personal, and mixed, in trust, and for the following purposes: It is my will, if it can be effectuated, that my brothers Evarts and James shall each annually, or at shorter periods, in discretion of said trustee, receive from said trustee the rents, interest, dividends, and profits of my estate, each one-half thereof. It is also my desire that their interest, and that of each alone, in the rents, etc., of my estate, shall in no manner, directly or indirectly, be subject to the debts of my said brothers, or either of them, which now exist, or which they may hereafter create, and being advised that, if the right of my said brothers, or either of them, in and to said rents, etc., is made absolute, certain, and indivisible, their creditors, contrary to my wish and will, may possibly subject the said rents, dividends, etc., to their claims: Now, therefore, to meet this state of case, I declare the right of my said brothers to receive said rents, profits, etc., shall only accrue annually, and that the same shall be paid, one-half to each, by my said trustee for their own--their present or future--use, or for their voluntary disposition thereof, and if, by any legal proceedings against said trustee, or my said brothers, or either, the said rents, etc., shall be attempted to be subjected to the debts of my said brothers, or either, then the rents, interest, dividends, or profits for that of both, or of the one whose interest is sought to be subjected, shall be added to the fund referred to in the next item, and my said brothers shall receive no part thereof, or, at least, the one for whose debt it is sought to be subjected. (2) It is my wish that the principal of my estate shall be so invested and kept invested as that it may produce a fair and reasonable profit and dividend. It is also my wish that so much of the profit, etc., of my estate as shall not, under the preceding item, be paid to my said brothers shall be treated thereafter as principal of my estate to be invested in such way as to yield profit. (3) If either of my said brothers Evarts or James shall die unmarried and childless, then the provisions of item one shall be for the benefit of the survivor during his life, but the one so dying first may, by will, devise one-half the principal of my said estate to whom he soever desires, but such devise not to take effect until the death of the surviving brother, who, meantime, shall receive the entire profits, etc., subject to conditions of item 1, if creditors attempt to intervene, and the survivor, Evarts or James, may dispose of the other half of my estate then remaining by will, as he desires. But, if either or both of my said brothers Evarts or James shall die intestate, then the one-half of my estate, which he might have disposed of by will, shall pass to his children, if any he has; or, if none, then to the children of his surviving brother, jointly with my sister Lavina, and brother Strother, or their heirs or devisees." By subsequent clauses it is provided that if Evarts and James, or either of them, at any time become free of debt, then one-half the estate is to be conveyed absolutely to the one so free; and in the event both become free, or die, the trust is to terminate; also, if the trusteeship should be vacant, the county court may, upon their motion, or that of the survivor, appoint a trustee; also that the trustee may, with their consent, or that of the survivor, make investments, or sell the property and reinvest the proceeds, but all to be held as principal of the estate; or, instead of renting the real estate, the trustee may permit them to occupy it, or part thereof, a fair rent to be charged and enforced as a lien upon the crop, if their creditors attempt to subject it; also that the trustee may make all necessary improvements or repairs, with their consent, or that of the survivor, and they may agree upon his compensation.

It is manifest the purpose of the testatrix was to give to these two brothers her estate without its being liable for their debts. The policy of our law, and in fact its express provision, forbids the creation of any trust by which this...