Brumbaugh v. Young
| Citation | 144 S.W.2d 823,235 Mo.App. 643 |
| Parties | GLENN E. BRUMBAUGH, TRUSTEE, RESPONDENT, v. MAGGIE ADCOCK ET AL., APPELLANTS |
| Decision Date | 18 November 1940 |
| Court | Court of Appeals of Kansas |
Appeal from Buchanan Circuit Court.--Hon. Emmett J. Crouse, Judge.
Judgment reversed.
W. M Morton for appellant, Ladies Union Benevolent Association.
(1) The deed creating the trust involved in this suit is not ambiguous and constitutes no basis for a reasonable doubt on the part of the plaintiff as to his duties in the administration of the trust and plaintiff's petition should, therefore, have been dismissed. Warner v. Mettler et al., 260 Ill. 416, 103 N.E. 259; Hill v Moors, 224 Mass. 163, 112 N.E. 641. (2) The language appearing in the trust instrument in question to the effect that "it is intended by this conveyance to insure the said Wallace B. Young an income sufficient for himself for the period of his natural life, but he, the said Wallace B Young, shall not have the power to assign, sell, or pledge the same previous to the payment thereof. . . .," does not give to the said Wallace B. Young any right under any circumstances to any of the corpus of this trust estate. Dunbar v. Aldrich (Miss.), 31 So. 341; 2 Devlin on Real Estate (3 Ed.), sec. 838; Mauzy v. Mauzy, 79 Va. 537; Bain & Bro. v. Buff's Administrator, 76 Va. 371; Weakley v. Barrow, 137 Tenn. 224, 192 S.W. 927; Newton v. Rebenack, 90 Mo.App. 650. (3) The trust instrument in question vests no discretionary powers in the plaintiff, as trustee, to determine what is "sufficient" income for Wallace B. Young, and even if defendant, Wallace B. Young, is entitled to receive any part of the principal by reason of the insufficiency of the income (and this the appellant, Ladies' Union Benevolent Association, vigorously denies) such encroachment upon the principal can only be made upon the order of a court of equity in appropriate proceedings wherein the trustee is instructed and directed as to the time, manner and extent of such use of the principal of the trust fund. (4) The pleadings in the case at bar present no issue as to the payment of operating expenses, including trustee's fees and attorney's fees, out of the corpus of the trust estate, nor are any issues properly presented as to acts done and transactions had in the past by the plaintiff trustee or his predecessors in office. Hill v. Moors, 224 Mass. 163, 112 N.E. 641, l. c. 642.
Roscoe P. Conkling for appellant, Maggie Adcock.
(1) The trial court erred in refusing to rule that plaintiff's bill is without equity, and erred in refusing to dismiss plaintiff's bill for want of equity and lack of jurisdiction in the court construing the same, because (a) The deed creating the trust contains no ambiguity. State ex rel. v. Trimble et al., 334 Mo. 920, l. c. 925; Wendorff v. Mo. State Life, 318 Mo. 363; State ex rel. Nat. Life Ins. Co. v. Allen, 301 Mo. 631, l. c. 636, 637. (b) In the absence of unequivocal express authority affirmatively conferred by the trust instrument itself (and the deed at bar contains no such authority), and in the face of objections by the residuary beneficiaries (as here) a trustee has no power whatever to distribute to a beneficiary having only a life estate in net income any portion of the principal of the trust estate. To justify any court in making any exception to the above rule for any purpose under any circumstances, the express direction and permission of the settlor must affirmatively be expressed in the trust instrument in the clearest manner. In re Boyles' Will, 251 N.Y.S. 197; Ashby v. Standard Pipe (Tex.), 56 S.W.2d 223. (2) The trial court erred in construing the deed to mean and erred in finding and decreeing that the trustee of the trust has the power and authority in his discretion to pay to Wallace B. Young portions of the corpus of the trust estate. Weakley v. Barrow (Tenn.), 192 S.W. 927; Stewart v. Hamilton (Tenn.), 270 S.W. 79; Clark v. Hearne (Mass.), 160 N.E. 309. (3) The trial court erred in decreeing that the trustee in his discretion could invade the corpus of the trust estate and distribute the same to Wallace B. Young, because any such invasion of the corpus cannot be left to the uncontrolled discretion of the trustee, but presents a judicial question for control by the court as to the purposes, the conditions precedent, the necessity therefor and the extent of such invasion. No authority for vesting the trustee with such uncontrolled discretion is to be found in the instrument creating the trust. Even if the trust instruction had expressly, affirmatively and unequivocally declared that, if the trustee should determine that the net income be insufficient "to insure to Wallace B. Young an income sufficient for himself during the period of his natural life," the trustee could pay to Wallace B. Young a portion of the corpus to supplement net income (and no such authority in the trustee is even remotely hinted at in the deed at bar), even then the trustee could not arbitrarily invade the corpus, and the exercise of the discretion of the trustee would be subject to judicial control. First Nat. Bank v. Snead, 24 F.2d 186; Stecker v. Foster (Mass.), 60 N.E. 407; Hoxie v. Finney (Mass.), 18 N.E. 593; Farlin v. Sanborn (Mich.), 126 N.W. 634. (4) The trial court erred in admitting in evidence testimony of extrinsic circumstances in the family relationship and erred in admitting in evidence the testimony of Wallace B. Young that there was a feeling of unfriendliness between his sister, Maggie Adcock, and his father and mother and that his sister had filed lawsuits against his father (71-75). Parol evidence is inadmissible in the attempted construction of an unambiguous instrument, and surrounding circumstances will not be permitted to place a construction on a deed inconsistent with the plain words used therein to add to, detract from or alter the intent. Warne v. Sorge, 258 Mo. 162. (5) The trial court erred in admitting in evidence testimony of extrinsic circumstances in the family relationship, and erred in admitting in evidence the testimony of Kay G. Porter that George W. Young and Cynthia A. Young were very bitter toward their daughter, Maggie Adcock (86-89). Parol evidence is inadmissible in the attempted construction of an unambiguous instrument. Warne v. Sorge, 258 Mo. 162.
Strop & Strop for respondent, Glenn E. Brumbaugh, Trustee of the Estate of Cynthia A. Young, deceased.
(1) A trustee can petition the court for guidance in the administration of trust matters when doubt exists as to the proper administration of the trust. Warner v. Mettler, 103 N.E. 259. (2) No evidence as to the integrity of Trustee Brumbaugh being offered, it is improper for the court to indulge in the assumption that the trustee would connive with a beneficiary for the dissipation of the trust funds. (3) The controversy in question involves the defense of the trust.
Groves & Watkins for respondent, Wallace B. Young.
(1) Under the terms of the trust deed, the trustee is empowered to pay to the respondent, Wallace B. Young, sums of money sufficient to insure the said Wallace B. Young an adequate income for his support, whether the same be from income, or from the corpus of the estate. Pierrepont v. Edwards, 25 N.Y. 128, l. c. 131, 134; Smith v. Fellows, 131 Mass. 20; First Trust Co. of Wichita v. Varney, 45 P.2d 582, l. c. 583; Blumer v. Gillespie, 93 S.W.2d 939, 338 Mo. 1113. (2) Where a testator or settlor uses certain language in similar successive bequests and omits said language from another successive bequest, it is presumed that such omission was intentional on the part of the testator or settlor, and is indicative of his desire that the particular words used should be given effect where used. In other words, where different words are used in a will or trust instrument, applying to the same subject matter in similar bequests, such use of different words indicates that the testator or settlor had in view different results from the use of said words. Strickland et al. v. Delta Investment Co. (Miss.), 137 So. 734, l. c. 736; Williams v. Fundingsland (Colo), 63 A. L. R. 77, l. c. 80. (3) The intention of the settlors is the pole star for the interpretation of the trust deed in question. The intention of the settlor shall govern and this intention may be expressed anywhere in the instrument. Goins v. Melton, 343 Mo. 413, 121 S.W.2d 821, l. c. 823; Blumer v. Gillespie, 338 Mo. 1113, 93 S.W.2d 929. (4) If the trust deed is ambiguous, the court may consider extrinsic evidence of the facts and circumstances surrounding the settlors at the time of the execution of the trust deed to assist the court in ascertaining the true intention of the settlors. 65 C. J., 500; First Tr. Co. of Wichita v. Varney (Kan.), 45 P.2d 582, l. c. 584. (5) Considering the evidence showing the facts and circumstances surrounding the settlors at the time of the execution of the trust deed, there can be little doubt that the settlors intended the trustee to expend for Wallace B. Young, any amount that might be necessary for his support, whether the same be from income or corpus of the trust estate. Pierrepont v. Edwards, 25 N.Y. 128, l. c. 131, 134; Smith v. Fellows, 131 Mass. 20; First Trust Co. of Wichita v. Varney, 45 P.2d 582; Blumer v. Gillespie, 338 Mo. 1113, 93 S.W.2d 939.
The issue in this case involves the construction of what is termed a General Warrantee Trust Deed executed by Cynthia A. Young and George W. Young, husband and wife, to Charles F. Strop, Trustee.
The deed was executed in Buchanan County, where the parties lived and where the property conveyed was located, on April 28 1921. The deed created a trust; the corpus of which, at the time the trust was made, consisted of real estate. However, under the...
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