Ford v. Ford

• Citation: 230 Ky. 56
• Parties: Ford v. Ford et al.
• Decision Date: 11 June 1929
• Court: United States State Supreme Court (Kentucky)

230 Ky. 56

Ford v. Ford et al.

Court of Appeals of Kentucky.

Decided June 11, 1929.

1. Trusts. — On divorced husband's application to enjoin executions issued under divorce and alimony decree which sought to reach property devised to complainant under spendthrift trust, chancellor on application of wife as next friend and guardian of children may take jurisdiction of the trust under his general power to control trust estates and direct actions of trustee not invested with absolute discretion.

2. Wills. — Testator cannot devise his property so that it will not be subject to debts of devisee, in view of Ky. Stats., sec. 2355, unless he provides that, in case such property is sought to be subjected, title shall go to some one else.

3. Trusts. — Where testator created spendthrift trust providing that in case beneficiary sold, conveyed, or incumbered his interest in real estate, it should thereupon vest in his children, but omitted such provision respecting other property devised or bequeathed in trust to beneficiary, chancellor may properly direct that portion of income from trust estate be applied in discharge of beneficiary's legal obligation to support children.

4. Trusts. — In proceeding by divorced husband to quash executions for alimony, evidence of requirements of wife and children held to

warrant allowance for support of children of $30 per month from income of trust estate of which complainant was beneficiary.

5. Divorce. — Though execution may properly issue upon judgment awarding wife sum in full of alimony and claims under contract for maintenance, execution does not lie to enforce payment of temporary allowances payable monthly during pendency of action for divorce; such allowances being enforceable only by rule.

6. Divorce. — Where only property to which husband had legal title was land which under provisions of spendthrift trust was not subject to execution, injunction properly issued to restrain sale of husband's property on execution to enforce alimony allowances.

Appeal from Pike Circuit Court.

W.A. DAUGHERTY for appellant.

JOHNSON & HINTON and STRATTON & STEPHENSON for appellees.

OPINION OF THE COURT BY JUDGE CLAY.

Reversing.

Polly Ford sued her husband, John Ford, Jr., for divorce and alimony and maintenance for herself and children. She was allowed during the pendency of the action the sum of $75 per month for the support of herself and children, and to enable her to prosecute the suit. On final hearing she was allowed permanent alimony in the sum of $25 per month. On her claim for temporary alimony she had the clerk issue an execution for $675. On her claim for permanent alimony, she had an execution issued for the sum of $25. This action was originally brought by John Ford, Jr., against Polly Ford and J.M. Moore, the sheriff of Pike county, to quash the aforesaid executions, and to enjoin the sheriff from selling or attempting to sell any of the property of Ford. Polly Ford filed an answer and cross-petition denying the allegations of the petition and asking that John M. Yost, trustee under the will of John Ford, Sr., be required to satisfy her claim for $675 out of property held by him in trust for John Ford, Jr., and that he be further required to pay a sufficient sum to provide suitable food, clothing, and educational advantages for her children. Evidence was heard, and on final hearing the chancellor quashed the execution of the pendente lite allowance, and enjoined the sheriff from selling, on the execution for permanent alimony, any of the property devised to John Ford, Jr., by his father. He further adjudged that a prior order directing John M. Yost, trustee, to pay the sum of $40 a month for the support and maintenance of the infant children should stand undisturbed, reserving the right to make such changes in that amount as the circumstances might require. He also authorized the trustee to pay out of the trust fund then on hand such expenses as were necessary to obtain proper medical and hospital services for Howard and Hazel Ford. He also adjudged that the trustee should not be limited by the allowance of $40 a month, but might exercise his discretion and increase the allowance without further order of the court if, in his opinion, such increase was deemed warranted. From that judgment Polly Ford in her own right, and as next friend of her infant children, prosecutes this appeal.

We shall first consider the propriety of the allowance made to the infant children of John W. Ford, Jr., and Polly Ford. J.W. Ford, the father of John Ford, Jr., died testate. By his will he first devised the surface of certain land on Powell's creek, and of the home farm, to John Ford, Jr., for and during his natural life, and after his death to his children, with the provision that John Ford, Jr., should not during his life sell, convey, or incumber his life estate in the aforesaid property, and that it should not be subject to his debts, and further providing that, if he sold, conveyed, or incumbered his interest in his lifetime, his interest should cease, and the estate in fee should immediately vest in his children. He then devised to W.W. Gray, as trustee for the use and benefit of John Ford, Jr., and his children, certain interests in...