First Nat. Bank v. Watters

• Decision Date: 19 December 1929
• Docket Number: 1 Div. 580.
• Citation: 125 So. 222,220 Ala. 356
• Parties: FIRST NAT. BANK IN MOBILE v. WATTERS ET AL.
• Court: Alabama Supreme Court

125 So. 222

220 Ala. 356

FIRST NAT. BANK IN MOBILE v. WATTERS ET AL.

1 Div. 580.

Supreme Court of Alabama

December 19, 1929

Appeal from Circuit Court, Mobile County; Alex T. Howard, Judge.

Bill in equity by the First National Bank in Mobile against Julian A Watters, Jr., and others, for a construction of a will. From the decree, complainant appeals. Affirmed.

Where will provided for accumulation of trust fund payable at intervals, on proof that adult sons led sober and industrious life, but testator's only son was physically incapable of managing his affairs, court was justified in decreeing annual distribution.

The bill makes parties respondent Julian A. Watters, Jr. Madeline Watters, Ethel Watters Dumont, Lucie Steele, and A B. Chaney. It alleges that Julian A. Watters, Sr., being the father of Julian A. Watters, Jr., the only child ever born to him, and the husband of Ethel Watters Dumont, died September 15, 1913, leaving a last will and testament making some minor devises and bequeathing the rest and residue of his estate in trust for certain purposes to the City Bank & Trust Company that said City Bank & Trust Company duly qualified as executor of said will, but subsequently failed in business and was absorbed by complainant, and complainant was thereupon appointed and qualified as executor of said will and became the trustee thereunder; that the administration of said estate has been removed into the circuit court, in equity, where the administration of the estate and performance of the trust have been conducted up to this time when the situation has become such that it is impossible for complainant to continue the proper administration of the estate and performance of its duties as trustee without the advice and direction of the court and without a construction of said will. It is further averred that by the terms of the will it was provided that the executor and trustee should manage and control the estate, collecting the rents, incomes and profits therefrom as long as said trust should continue, and out of such rents, incomes, and profits should pay certain annuities therein provided for, and that-

"All of the balance of the rents, incomes and profits arising from my estate, after making the said monthly payments hereinabove provided for, shall, so long as my wife may live, be divided between my wife and children, share and share alike. My wife's share of said income shall be paid over to her on the first day of each month as long as she may live. After my wife's death, the said entire income shall be divided equally amongst my children, and be in all respects treated as if no provision had ever been made for my wife. My said trustee shall, from time to time as requested by my wife, pay over to her whatever amounts she may claim as the cost of supporting, maintaining and educating my several children who may be under the age of eighteen (18) years respectively, the amount paid over to her for the support, maintenance and education of each child being charged to that child. The said payments on account of any child, shall not however, during any one year, exceed that child's share of the rents, incomes and profits of my estate during that year. The amounts so paid over to my wife for the support, maintenance and education of my children are paid over to her for that purpose, and are to be received by her free of any legal accountability, either to the child or to any other person, it being the intent and purpose of this provision to entrust the support, maintenance and education of my children, and expenditures for their benefit, entirely to my wife precisely as if the moneys which she received had been given to her absolutely and in this, I am relying upon her motherly instinct and integrity. Whatever amounts are paid to my wife under this provision on account of each child, shall be charged against that child, and my said Trustee shall reinvest and accumulate the balance of such child's share of said rents, incomes and profits of my estate, to be paid over to said child, in the final distribution to him, as hereinafter provided for. The foregoing provisions of this item shall continue as to each child until he or she shall have reached the age of eighteen years, after arriving at which age, each of my children shall receive from my said Trustee, from time to time as they may request the same, such moneys, not exceeding their share of the income for the year in which the demand is made, as may in the judgment of said Trustee be reasonable and proper for the liberal support, maintenance and education of said child, and should the said Trustee at any time, deem it necessary to withhold from said child any portion of the said rents, incomes and profits which the said child may desire to receive on account of his support, maintenance and education, then the payment of said child shall be increased to whatever amount my said child and his mother may, from time to time jointly certify to the said Trustee to be, in their judgment, reasonable and proper for the purpose of the support, maintenance and education of the said child, the payments during any one year, however, never to exceed that child's portion of the rents, incomes and profits of my estate for that year. These distributions to my children shall continue as to each child respectively, until they reach the age of twenty-one years, and thereafter until they shall have finished their education.

"Should my wife marry again, then and in that event she shall thereupon cease to be entitled to receive and manage any portion of the share of any of my children in the rents, incomes and profits of my estate, and in this event, the said Trustee shall provide for the support, maintenance and education of my children out of their respective shares of the rents, incomes and profits of my estate, in keeping with their station in life, up to the time when they respectively reach the age of eighteen years without the intervention of my wife, charging the expenditures as above provided, but the marriage of my wife shall work no change in the matter of caring for said child after he or she arrives at said age of eighteen years. It is my desire that each of my children shall be afforded every educational advantage which they are willing to accept.

"After the death of my wife, all of the share of my property which is set apart for the purpose of providing an income for her during her life, I give, devise and bequeath to my several children, share and share alike. Should she die before the final distribution to all of my children, said Trustee shall immediately distribute to each child who may have already...