Fidelity & Columbia Trust Co. Inc. v. Vivian

• Decision Date: 21 May 1943
• Citation: Fidelity & Columbia Trust Co. Inc. v. Vivian, 171 S.W.2d 987, 294 Ky. 390 (Ky. Ct. App. 1943)
• Parties: FIDELITY & COLUMBIA TRUST CO., Inc., et al. v. VIVIAN.
• Court: Kentucky Court of Appeals

171 S.W.2d 987

294 Ky. 390

FIDELITY & COLUMBIA TRUST CO., Inc., et al. v. VIVIAN.

Court of Appeals of Kentucky

May 21, 1943

Appeal from Circuit Court, Nelson County; L. B. Handley, Judge.

Action by Mrs. Louis Vivian against the Fidelity & Columbia Trust Company, Inc., and others, under the Declaratory Judgments Act, Civ.Code Prac., § 639a-- 1 et seq., seeking a declaration of her rights in a trust fund under the will of Mattie Wilson, deceased. From a judgment in favor of plaintiff, defendants appeal.

Affirmed.

William Marshall Bullitt and Leo T. Wolford, both of Louisville, for appellants.

Ernest N. Fulton, of Bardstown, for appellee.

THOMAS Justice.

In 1932 Mattie Wilson, a resident of Nelson County, executed her will, naming therein Wilson & Muir Bank, a corporation, as its executor, the duties of which it was authorized to perform. It qualified as such upon the probating of the will of testatrix. She created certain trusts in her will and designated appellant, Fidelity & Columbia Trust Company of Louisville, Kentucky, as trustee in each of them. At that time she had three brothers, Claude Wilson, Ernest Wilson and Leon Wilson--the latter two being then confined in the Central State Hospital for the Insane--to each of whom she devised $3000 "in trust in the Fidelity & Columbia Trust Co., the income to be used for their support at their death goes to my niece Mrs. Louis Vivian, Louisville, Ky."

In 1935 testatrix executed a codicil to her will, in which she said "It is my desire that my two brothers, Leon Wilson and Ernest Wilson, shall each receive $5,000.00 from my estate instead of the $3000.00 before named and that the amount that each shall receive shall be placed with the Fidelity &amp Columbia Trust Co., of Louisville, Kentucky, as Trustee for them. I further devise and will that Claude Wilson shall receive $10,000.00 from my estate instead of $8,000.00 named in the foregoing Will." It will be perceived that the only change made by the codicil, in the benefits conferred by the original will upon her two brothers, Ernest and Leon Wilson, was an increase of the amount devised to them in the original will from $3,000 to $5,000 each, and upon which they were to receive the income from its investment by their trustee, designated in the will for that purpose. However the codicil increasing the amount of such benefits did not repeat (as she had stated in her will) that appellee, Mrs. Louis Vivian, should receive the enlarged corpus of the trusts after the death of the two beneficiaries in them.

Ernest Wilson died in January, 1943, while still confined in the State Hospital for the Insane, but Leon Wilson, who is also confined in the same institution, is still living. Plaintiff and appellee, after the death of her uncle, Ernest Wilson, asserted claim to, and demanded the payment of the $5,000 trust fund created by the will of testatrix for his benefit which the original will had prescribed, as we have seen. The trustee declined to grant her request, since it entertained a doubt as to whether or not the codicil executed by testatrix to her will revoked the remainder interest of the trust fund given by the original will, by failing to repeat in the codicil the same disposition in remainder after the death of the cestui que trustent.

Appellee filed in the Nelson Court this declaratory judgment action against all other interested parties, seeking a declaration of her rights in the funds referred to, which she claimed was absolute and to which she is now entitled. The various defendants answered admitting the facts as set...