Bush v. Webster

• Decision Date: 05 March 1903
• Citation: 72 S.W. 364
• Parties: BUSH v. WEBSTER et al.
• Court: Kentucky Court of Appeals

72 S.W. 364

BUSH v. WEBSTER et al.

Court of Appeals of Kentucky.

March 5, 1903

Appeal from circuit court, Hardin county.

"Not to be officially reported."

Suit by E. R. Webster and others against S. H. Bush, trustee, for a new trial. Judgment for plaintiffs. Defendant appeals. Reversed.

J. P O'Meara, for appellant.

R. L Stith, for appellees.

O'REAR J.

Prior to 1872, appellant had qualified as trustee for appellee E R. Webster. The trust estate seems to have been a certain estate devised by Mrs. Webster's father, consisting of real estate, bonds, and other property. Directly after his qualification, appellant instituted an equitable action in the Hardin circuit court concerning settlements of his accounts from time to time, in which he made biennial settlements. Sometimes upon exceptions and sometimes without exceptions, it seems that these settlements were approved. In 1897 the trustee was discharged, and the trust estate was adjudged to be delivered to Mrs. Webster. The trustee thereupon appeared in court in that action, and made a final settlement of his account with the master commissioner. Appellee had timely notice of this settlement. The settlement was reported to the court, and ordered to lay over for exceptions, and, none having been taken or filed, the report was confirmed. Later in the term Mrs. Webster and her husband, through their counsel, filed exceptions, which were overruled by the court. This suit was brought after that term of the court to obtain a new trial of the action in which the settlements and the final settlement above named had been made. The ground was an alleged fraudulent arrangement between appellant and the appellees' attorney in that suit, by which it was charged that appellant was suffered to have his settlement approved and confirmed by the court, and a judgment thereon entered in his behalf, without the presentation at the trial of appellees' objections and exceptions to the settlement.

We are of opinion that there is a total failure of proof to sustain the ground. Besides, the petition for a new trial is lacking in specific averments as to the nature of appellees' exceptions, their grounds, and the nature of the various items to which they were taken, so that the court might determine whether appellees had a valid defense in that action. It was essential that, not only should these grounds be specifically set forth, but that they should be...