First Nat. Bank v. Lee

• Citation: 66 S.W. 413
• Parties: FIRST NAT. BANK OF CARLISLE v. LEE et al. [1]
• Decision Date: 04 February 1902
• Court: Kentucky Court of Appeals

66 S.W. 413

FIRST NAT. BANK OF CARLISLE v. LEE et al. ^[1]

Court of Appeals of Kentucky.

February 4, 1902

Appeal from circuit court, Nicholas county.

"Not to be officially reported."

Action by J. W. B. Lee, trustee of Mary E. Lee, against Mary E. Lee and others, seeking a confirmation of plaintiff's action in selling the trust property for reinvestment. Judgment decreeing specific performance of contract, and the First National Bank of Carlisle, the purchaser, appeals. Reversed.

Winfield Buckler, for appellant.

S Holmes, for appellee trustee. C. W. Wood, for appellee E. W Lee.

O'REAR J.

The last will of Harvey Wilson devised $4,000 in trust for the use of his daughter, Mrs. Mary E. Lee, for her life, then to her surviving children. The provision is as follows: "It is my will and desire, after the payment of my funeral expenses and just debts, that my beloved wife, Amelia Wilson shall have the interest and profits annually accruing from the sum of $4,000, which she may loan out or otherwise invest from time to time as she may deem best, but in no event to use any of the principal. After the death of my said wife it is also my will that the said sum of four thousand dollars shall descend to and belong to my daughter, Mrs. Mary E. Lee in trust, the interest and profits of which I wish to be paid to her annually by some reliable and trustworthy person that the proper tribunal may appoint for that purpose, and at the death of my said daughter I wish the principal or said sum of $4,000 to be equally divided between her surviving children." The $4,000 in question was invested by a trustee appointed for Mrs. Lee and her children by the proper tribunal. With it he purchased a brick business house and lot in Carlisle, Ky. paying for it $4,300, $300 being contributed by her husband. The title was taken to the trustee and his successors in trust for the use and benefit of Mrs. Lee for life, with remainder to such of her children as may survive her, "as provided by the will of said Harvey Wilson deceased." The property has come into demand for a peculiar use, giving it for the time an extraordinary selling value. The trustee contracted to sell it to appellant at the price of $7,000,--fully its value in any view of the situation. He then brought this suit in the circuit court of Nicholas county against the life tenant and remainder-men in esse, seeking a confirmation of his action. It was averred and sufficiently shown that the sale was an advantageous one. To this suit the purchaser, appellant, intervened, raising the question of the right of the trustee to make the sale. The circuit court adjudged the contract enforceable, and decreed its specific performance. The court further adjudged that $4,000 of the purchase price be paid into court for reinvestment, under the will of Wilson, and that the remaining $3,000 be paid to the life tenant, Mrs. Lee. The questions for decision are: (1) Did the trustee have the power to sell and convey title to the lot? and (2) was the whole of the purchase price realized the principal fund, or was the excess...