Citizens' Nat. Bank v. Watkins

• Decision Date: 21 October 1912
• Citation: 150 S.W. 96,126 Tenn. 453
• Parties: CITIZENS' NAT. BANK v. WATKINS et al.
• Court: Tennessee Supreme Court

150 S.W. 96

126 Tenn. 453

CITIZENS' NAT. BANK v. WATKINS et al.

Supreme Court of Tennessee.

October 21, 1912

Appeal from Chancery Court, Hamilton County; T. M. McConnell Chancellor.

Action by the Citizens' National Bank against A. J. Watkins and others. Judgment for plaintiff was affirmed by the Court of Civil Appeals, and defendants appeal. Affirmed.

Pritchard & Sizer, of Chattanooga, for appellants.

R. B Cooke, of Chattanooga, for appellee.

LANSDEN J.

The complainant is the owner of the defendant's note in the sum of $525.25, and filed this bill in the chancery court of Hamilton county, praying for judgment upon the note, and assailing a certain conveyance made by the defendant to his brother, as trustee, upon trust for the donor himself, as fraudulent and void, as hindering and delaying creditors. The conveyance assailed provides as follows:

"To keep said property in repair and collect, or have collected, all rents arising from said property, and to pay all taxes legally assessed against same, and to keep insured, if in the discretion of the trustee it should be done, and to such amount as the trustee deems necessary the above expenses to be paid out of the income, likewise all other legitimate expenses arising from said trust, and the remainder of the income of every kind arising from said property the trustee will pay over to A. J. Watkins during his lifetime, it being my [A. J. Watkins'] intention to retain all the net income after the expenses are paid during my natural life (the property hereby conveyed being absolutely my own). And at my death the trustee will convey the property to my daughter, Helen R. Watkins, in fee simple, if she has at that time reached the age of 21 years, free from the debts, contracts, control, or obligation or any marital rights of her husband at that time, if she be married, or any future husband that the said Helen R. Watkins may have. If not, said trustee will hold such property until she does arrive at the age of 21 years, and then convey to her in fee simple as above described.

"In case of the death or resignation or inability of the said trustee during the existence of this trust, then my mother, Helen Watkins, shall succeed Chester Watkins as trustee, and have power as here is invested in the original trustee, and continue the trust as aforesaid. If, during the existence of said trust, it shall be deemed best by the trustee or his successor in trust, said trustee or his successors in trust may at will sell any portion or all of said real estate for investment, or for any other purpose deemed necessary, by said trustee, and the same may be done by said trustee, and a good title vested in the purchaser, provided I join in the deed of conveyance. In the event of the death of Helen R. Watkins, the beneficiary herein named, she dying without issue during the lifetime of the said A. J. Watkins, the trustee will reconvey all of the above-described property to said A. J. Watkins in fee simple; but if said A. J. Watkins in fee simple; but if said A. J. Watkins is dead at that time, the aforesaid trustee will convey said real estate in fee simple to my brothers, R. M. and Chester Watkins."

The answer of the defendant denied the fraud charged in the bill, and set up and relied upon the validity of the deed of trust. There is no proof in the record to support the charges of fraud made in the bill, other than the deed itself.

It is insisted for the defendant that the trust created by the deed in controversy is an active one, imposing certain specific duties upon the trustee, such as keeping the property in repair, collecting rents, paying taxes and insurance, and at the death of the grantor to convey the property to his daughter if living, and if not living then imposing certain other active duties upon the trustee or his successor in respect of the property.

It is argued from this that the complainant, being a subsequent creditor at large, is entitled to no relief, upon the authority of McKeldin v. Gouldy, 91 Tenn. 677, 20 S.W....