Frensley v. Frensley

• Decision Date: 12 May 1936
• Docket Number: Case Number: 26355
• Citation: 177 Okla. 221,1936 OK 382,58 P.2d 307
• Parties: FRENSLEY v. FRENSLEY
• Court: Oklahoma Supreme Court

1936 OK 382

58 P.2d 307

177 Okla. 221

FRENSLEY v. FRENSLEY

Case Number: 26355

Supreme Court of Oklahoma

Decided: May 12, 1936

Syllabus

¶0 1. DIVORCE - Decree Awarding Specific Personal Property as Alimony not Invalid for Uncertainty.

The rule requiring the amount to be paid under a money judgment for alimony to be definitely ascertainable at the time of entry of judgment does not apply to a decree awarding specific personal property as alimony. Such a decree is valid as against an objection to its uncertainty, if, by resort to the usual rules of construction, the specific property awarded can be identified.

2. SAME - Decree Awarding Portion of Income to Be Derived From Established Trust.

An alimony decree awarding a portion of the income to be derived from an established trust is a decree awarding specific property as distinguished from a "sum of money payable in gross or in installments."

3. SAME - Decree Held not to Assign Portion of Trust Res or Proceeds of Sale of Part Thereof.

A decree awarding a share of the income from an established trust held not to convey or assign any portion of the trust res or the proceeds of the sale of a part of such trust res.

4. TRUSTS - Income From Real Estate Placed in Trust May Be Restrained From Alienation Only to Extent Such Income is Necessary for Support and Education of Cestui Que Trust.

The income from real estate placed in trust may be restrained by the settler from voluntary or involuntary alienation by the cestui que trust to the extent such income is necessary for the support and education of such cestui que trust as gauged by his preexisting station in life. The surplus of income over and above such amount is alienable.

Appeal from District Court, Carter County; John B. Ogden, Judge.

Proceeding to enforce an alimony judgment previously granted in connection with a divorce action. Judgment for May Frensley, the divorced wife, who was the alimony judgment creditor. Cecil Frensley, the divorced husband, and T.B. Frensley, trustee, appeal. Reversed.

Stephen A. George, for plaintiffs in error.

Sigler & Jackson, for defendant in error.

BUSBY, J.

¶1 This case involves the efforts of a divorced wife to reach the income and proceeds of a trust created in favor of her former husband (and others) by his deceased father.

¶2 Some time prior to May 14, 1929 (the exact date not shown in the record), B.F. Frensley (otherwise known as Frank Frensley) died testate. By the terms of his will his property was to be divided among his six children, or their descendants. The plaintiff in error Cecil Frensley (also known as Rubin Cecil Frensley) is one of the children. It was not contemplated by the testator that all of the property should immediately pass into the hands of the children. A large portion of the real estate was placed in a trust under restrictive provisions. However, a specific devise or bequest independent of the trust provision was made to each of the children. The devise of specific property to Cecil Frensley contained in the will read as follows:

"To my son, Rubin Cecil Frensley, I give, devise and bequeath that certain residence adjoining the city of Ardmore, which I have built for his use and occupation and known as his property, together with ten (10) acres of ground upon which said house is situated to be designated and set part in conformity with the government subdivision as near as may be out of the twenty (20) acres on which said house is located."

¶3 In the first provisions of the will relating to the creation of a trust a number of pieces of real estate were described, and following this description it was said, relating thereto:

"I do give, devise and bequeath unto R.B. Frensley, T.B. Frensley and Moran Scott, to have and to hold, for a period of twenty (20) years from the date of my death in trust nevertheless and upon the uses and trust and for the purposes following: to be held, managed, and controlled by said trustees, or their successors in trust for the use, benefit and advantage of my children, Rubin Cecil Frensley, Georgia Pearl Brqazile (sic), Mary Sue Frensley, Virgie Frank Brazile, Margarete May Elliott and Mildred Garrett, the whole net income or earnings accruing from said property after all taxes and necessary charges have been paid to be paid over to my said children share and share alike during the period of this trust as often as once a month, if desired, upon their separate order or receipt and without being subject in any manner to the order of intervention, or control of any husband or wife or any or either of them may have, or of any creditor of any or either of them, or of their husband or wife aforesaid. My object being to secure to each of my said children for twenty (20) years the use and enjoyment of all the income from said property beyond and without the intervention or control of any husband or wife of any, or either of my said children, or any creditors of them; and upon the decease of any one of my said children before the expiration of trust period herein created the said principal trust property and all earnings or accumulations thereon unclaimed by any one of my said children in hands of said trustees, or their successors in said trust after deducting expenses incident to said trust is to be paid over and distributed to the issue of any one or more of my said children who are deceased, then living, if any, for their use and benefit share and share alike; it being intended that the issue of any deceased child of mine shall take the interest of its deceased parent; but in case any of my said children shall die without issue, or direct heirs, then in that case the whole of the said principal trust property and proceeds and earnings shall be paid over and belong to my children then living in equal parts, share and share alike. And on the termination of the trust period herein, should any of my children die before said termination without issue, then the principal trust property shall go to my remaining children then living and to the children of those who then may be dead share and share alike, except children of any deceased child of mine take only their parent's share."

¶4 The remainder of the real estate not specifically covered by the foregoing provision and not specifically given unrestricted to the beneficiaries under the will was placed in trust under the following testamentary provision:

"Third: All of the residue and remainder of my real estate of every kind and description where ever located, I do give, devise and bequeath to R.B. Frenasley (sic), T.B. Frensly (sic) and Moran Scott and their successors and assigns to have and to hold for the period of twenty (20) years, but in trust, however, and upon the use and trust and for the purposes following: to be held, managed and inbested (sic) and from time to time reinvested as need be by said trustees and the whole net interest or income from said property to be paid over to my children, Georgie Pearl Braxile (sic), Virgie Frank Braxile (sic), Rubin Cecil Frensley, Mary Sue Frensley, Margarete May Elliott and Mildred Garrett share and share alike as often as once in six months if desired, upon the order or receipt of each one personally, without being subject in any manner to the order, intervention or control of any husband or wife. But in case of the death of either, or any of my said children in this paragraph mentioned without issue, then in such case, the whole of such principal trust property and its net earnings shall be paid over to those still living, or their lawful heirs for his or her own use and benefit. And on the termination of the trust in this paragraph mentioned, then the property shall become absolute property of my children, or their heirs without limitation or restriction, to share and share alike."

¶5 In other portions of the will the trustees were authorized, upon certain conditions, to sell and dispose of portions of the real estate placed in their charge and control and to pay the proceeds of any such sale to the children of the deceased, share and share alike. It is provided that:

"I do hereby authorize and empower my said trustees above named, or any successors in said trust to sell and dispose of any property, real or personal that I may have at the time of my death, except the business lots and buildings in Ardmore, Okla., and to make good and valid instruments of transfer thereof of any part or any rights therein whenever in the judgment of said trustees any of said property is depreciating in value and to pay over to my said children share and share alike the proceeds of such sale."

¶6 Provision was likewise made for the substitution of other trustees in the event the trustees named in the will should fail or be unable to act.

¶7 The plaintiff in error T.B. Frensley became executor under the will and sole trustee under the trust provisions thereof. He became involved in this litigation by reason of his fiduciary connection with the estate. The details of the method and means by which he now occupies this position are not important in this litigation and will not be discussed.

¶8 On the 14th day of May, 1929, the defendant in error, May Frensley, as plaintiff in the trial court, being then the wife of Cecil Frensley, commenced this action to obtain an absolute decree of divorce and a judgment for alimony. While the action was pending she filed an amendment to her petition seeking to have T.B. Frensley, executor of the estate and trustee under the will, made an additional party defendant for the purpose of requiring him to pay into court such sums as might be due from the estate or trust to Cecil Frensley. It does not appear from the record that a formal order making T.B. Frensley a party to the action was ever entered. However, he filed a separate answer in the case on the 26th day of September, 1929.

¶9 Subsequent recitations in the record disclose that on some date not shown by the record now before us the plaintiff obtained a decree of...