Curl v. Sec. Trust Co., (CC 696)
| Decision Date | 06 March 1945 |
| Docket Number | (CC 696) |
| Citation | 127 W.Va. 501 |
| Parties | Joseph R. Curl, Executor, etc. v. Security TrustCompany, etc. |
| Court | West Virginia Supreme Court |
TRUSTS
Where an instrument creating an active trust contains a provision naming a fixed amount to be paid to the trustee as annual compensation and the named trustee accepts the office and performs the duties thereof, the trustee is entitled to no additional compensation upon final distribution of the corpus of the trust estate unless the trust instrument plainly so contemplates.
Certified by Circuit Court, Ohio County. Suit by notice of motion for judgment by Joseph R. Curl, executor of the last will and testament of Elizabeth Erskine, deceased, against the Security Trust Company, etc., to recover the amount alleged to have been wrongfully withheld by respondent as a commission for distributing the corpus of a trust in kind. The circuit court sustained complainant's demurrer to respondent's answer and certified certain questions to the Supreme Court of Appeals.
Affirmed.
Erskine, Palmer & Curl, for plaintiff. McGinley, Paull & Petroplus, for defendant.
Joseph R. Curl, Executor of the last will and testament of Elizabeth Erskine, sued Security Trust Company in the Circuit Court of Ohio County by way of notice of motion for judgment and after the appearance of the defendant the matter, without objection, was transferred to the chancery side of the court, after which both bill and answer were filed. The purpose of the proceeding was to recover, as the personal representative of the sole residuary beneficiary of a trust inter vivos created in nineteen hundred and twenty by William Erskine, Elizabeth Erskine, his wife, and Security Trust Company, Trustee, the amount of five hundred and eighty dollars and seventy cents alleged to have been wrongfully withheld by Security Trust Company, five hundred and twenty-eight dollars and sixty-five cents of that amount being withheld as a commission of two per cent for distributing the corpus in kind of the trust estate with which it stood charged, it being the contention of the plaintiff that the trust instrument under the terms of which Security Trust Company was acting, expressly provided only an annual compensation of fifty dollars, thus limiting the compensation of the trustee to the named amount for both administration and final settlement, the trustee contending that in addition it was entitled to withhold a customary commission of two per cent of the value of the corpus on final distribution.
The answer of the trust company alleges in great detail the creation and history of the trust, and, after admitting what we regard as the material allegations of the bill of complaint, in effect contends that the annual compensation to the trustee of fifty dollars provided in the trust instrument is plainly not intended to be exclusive of the compensation on a percentage basis customarily allowed fiduciaries in Ohio County upon the reasonable value of the corpus of the estate upon final settlement and distribution and that it therefore is lawfully entitled, in addition to the annual compensation which it admits having received, to two per cent of the estate's capital, ninety-eight per cent of which it has delivered to plaintiff.
There is no controversy concerning the highly satisfactory administration of the trust nor the value of the corpus of the trust estate.
In October, nineteen hundred and twenty, William Erskine, an able lawyer residing in Marshall County, Elizabeth Erskine, his wife, called "beneficiaries", and Security Trust Company, called "trustee", executed a declaration of trust transferring to the trustee seventyfive hundred dollars in cash and secured promissory notes of a like sum payable one year from date. The notes were later reduced to cash. The trustee agreed to hold and to invest and reinvest both the capital and income of the trust fund in preferred stock and other securities deemed safe by it and earning the greatest income consistent therewith, and to pay the income to the beneficiaries and to the survivor of them, or the survivor's personal representative, from time to time, after deducting therefrom any necessary taxes and other charges of administration of the trust, including an annual compensation to the trustee of fifty dollars. In addition to so administering income the trustee agreed," * * * if required by the said beneficiaries, or the survivor of them, * * * " to not only disburse the income but also to disburse any part of the capital of said fund as it shall be requested to disburse for the benefit of the beneficiaries, the remainder of the fund to be invested in augmentation of the trust fund and to follow "the destination thereof". The declaration of trust is quite lengthy and contains the usual provisions of such a paper in detail.
In December, nineteen hundred...
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Dick Bros., Inc. v. Commissioner of Internal Revenue
...presumuntur rite et solemnitur esse acta, donec probetur in contrarium." (Emphasis supplied.) See also Curl v. Security Trust Co., 1945, 127 W.Va. 501, 33 S.E.2d 677, 161 A.L.R. 855; Smith v. Fuller, 1912, 86 Ohio St. 57, 99 N.E. 214, L.R.A.1916C, 6; Atlanta Coca-Cola Bottling Co v. Shipp, ......
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Curl v. Security Trust Co.
...33 S.E.2d 677 127 W.Va. 501 CURL v. SECURITY TRUST CO. C. C. No. 696.Supreme Court of Appeals of West Virginia.March 6, 1945 ... Rehearing ... Denied May 14, 1945 ... Certified ... ...