Devenney v. Devenney
| Decision Date | 03 April 1906 |
| Docket Number | 9090 |
| Citation | 77 N.E. 688,74 Ohio St. 96 |
| Parties | Devenney v. Devenney. |
| Court | Ohio Supreme Court |
Construction of item in will - Loss or gain in value of securities - Purchased by trustee - Goes to principal and not to the income, when - Definition of the term "dollar" - Bequest of one thousand dollars to legatee - To be paid in money and not by delivery of securities - Law of wills - Descent of property - Executorship.
1. A petition, in a cause brought under section 6202, Revised Statutes, to obtain a construction of one item only of a will, which does not set forth the entire will, is bad on general demurrer.
2. As a general proposition the loss or gain in the value of securities purchased by a trustee having authority therefor should go to the diminution or accretion, as the case may be of the principal and not to the income, unless a contrary intention is to be inferred from the trust instrument.
3. The term "dollar" implies the money unit of the United States. It means simply money. Hence a provision in a will which gives to a legatee, to be paid by the executor, the interest annually during his life of one thousand dollars which the executor is directed to invest and keep safely invested, the one thousand dollars to be paid at the decease of the legatee to his children or their issue, and in case he die without children or issue, then to another named, and provides further that the legatee may at any time secure to the executor the return to him of the one thousand dollars at the death of the legatee, and upon the offer of such security the said sum shall be delivered to said legatee, is a provision for the payment of money only and not for the delivery of securities.
4. Where, under such provision of a will, the executor invests the one thousand dollars in securities in conformity with the direction of the will, and a premium accrues thereon, such premium does not belong to the cestui que trust, but is to go to the residuary legatee if there be one and if not, to the estate generally. And the executor will not be required, upon the tender of security to secure the return to the executor of the one thousand dollars at the decease of the legatee, to deliver to him the securities in which said one thousand dollars have been invested.
Warner C. Devenney (defendant in error) commenced an action against Samuel S. Devenney (plaintiff in error) by the filing of a petition in the court of common pleas of Licking, a copy of which follows:
Plaintiff says that he is one of the legatees under the will of John P Devenney, deceased, and that the defendant, Samuel Devenney is the executor of said last will and testament, and the trustee provided for by section fourth of said will. Plaintiff says that he requested more than thirty days ago said Samuel S. Devenney in writing to begin this action, but that said Samuel S. Devenney has refused to do so, and this plaintiff brings this action under and by virtue of the statute authorizing the same. Plaintiff says that in the administration and the distribution of said estate under the said will, and in the execution of the trust created therein certain questions have arisen which can be properly determined only by a decree of this court, and the plaintiff believes that it is necessary to the proper execution of the duties of the defendant as trustee under said will, that he should receive the instructions of this court as herein prayed for. Plaintiff says that the will and testament of John P. Devenney contained the following item:
Plaintiff says that said defendant is acting as trustee for this plaintiff under said item. That in July, 1898, Samuel S. Devenney, as trustee aforesaid, and assuming to carry out the request set forth in item fourth of the last will and testament of John P. Devenney, invested the one thousand dollars mentioned in said item fourth in United States government bonds, and that said money is at present invested in said bonds. Plaintiff says he is willing to secure to said Samuel S. Devenney the one thousand dollars mentioned in said item fourth, and has offered and agreed to do so, and that said Samuel S. Devenney has expressed himself as being satisfied with the security offered by this plaintiff, provided that the said Samuel S. Devenney shall turn over to him the investment which has been made in United States Government bonds, that is, the bonds themselves, that constitute the investment. That said Samuel S. Devenney refuses to do this, although said Samuel S. Devenney offers to turn over to plaintiff one thousand dollars, and has made a legal tender thereof, but not the investment which he has made under and by virtue of the trust aforesaid, and which offer the plaintiff rejected.
Wherefore, this plaintiff prays that this court direct and instruct said Samuel S. Devenney as to said item fourth, and for such other relief as plaintiff may be entitled.
To this petition a general demurrer was filed by Samuel S. Devenney. Upon hearing and consideration the court of common pleas overruled the demurrer, and the defendant not desiring to plead further the court found upon the petition that the plaintiff is entitled to the bonds themselves in which the investment is made by Samuel S. Devenney, as executor of the last will and testament of John B. Devenney, and judgment is rendered accordingly, with costs. Upon error to the circuit court that judgment was affirmed, and Samuel S. Devenney brings error.
Messrs. Hunter & Hunter, for plaintiff in error.
Mr. Waldo Taylor and Mr. J. R. Fitzgibbon, for defendant in error.
The question is, does the petition state a case entitling the legatee to any relief? The action was brought by Warner C Devenney, legatee, under favor of section 6202, Revised Statutes, which authorizes an action of this character to be instituted by a legatee where the executor refuses to bring it, and the person so bringing such action may ask the direction of the court in...
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