Gibson v. Security Trust Co., 6536.

• Decision Date: 31 January 1953
• Docket Number: No. 6536.,6536.
• Citation: 201 F.2d 573
• Parties: GIBSON et al. v. SECURITY TRUST CO. et al.
• Court: U.S. Court of Appeals — Fourth Circuit

201 F.2d 573 (1953)

GIBSON et al. v. SECURITY TRUST CO. et al.

No. 6536.

United States Court of Appeals Fourth Circuit.

Argued January 15, 1953.

Decided January 31, 1953.

Gilbert S. Bachmann, Wheeling, W. Va. (Carl G. Bachmann, Wheeling, W. Va., and Thomas A. Hamilton, Mobile, Ala., on the brief), for appellants.

August W. Petroplus and D. Paul Camilletti, Wheeling, W. Va., for appellee Security Trust Co.

James G. McClure, Wheeling, W. Va. (Frank A. O'Brien, Wheeling, W. Va., on the brief), for appellees Ervin C. Fuhr and Ruth Fuhr.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

PARKER, Chief Judge.

This is an appeal from a summary judgment dismissing an action instituted to obtain a declaratory judgment and enforce the rights of plaintiffs under the terms of a trust instrument. 107 F.Supp. 766. The case was heard upon the allegations of the pleadings and admissions of counsel in the course of a pretrial conference. Plaintiffs contend that they have been denied their day in court and the question presented by the appeal is whether they were entitled to produce evidence to sustain the allegations of their pleadings or whether upon the admitted facts they have no right to recover.

The facts admitted by plaintiffs to be true are that plaintiff W. J. B. Gibson was an employee of the trust department of the defendant Security Trust Company of Wheeling, West Virginia. On May 26, 1947, one Jessie B. Mahlke executed an inter vivos trust agreement designating the Security Trust Company as trustee of her property. On Dec. 13, 1947 she amended this trust agreement by adding item 8, which is as follows:

"Amended Item 8. Upon my death and after the payment of the amounts in Amended Item 7 are duly made, my said Trustee shall continue to hold the residue of said trust fund in trust under the same broad terms and conditions as in said Trust Agreement dated May 26, 1947 made and provided, and the income therefrom shall be paid to Ervin C. Fuhr and Ruth Fuhr, or the survivor, for and during the term of their natural lives.

"My said trustee, in its sole discretion, is hereby vested with complete power and authority to expend such portion or portions of the corpus or principal of the said residue of said trust fund from time to time as in its sole discretion it should deem such corpus expenditures necessary for the proper maintenance, support and comfort of either the said Ervin C. Fuhr or Ruth Fuhr.

"I hereby declare that I have during my lifetime incurred certain obligations in a very confidential manner which will require the expenditure of cash in order to pay and discharge said obligations. Such facts are known to Ervin C. Fuhr and Ruth Fuhr, his wife, in whom I repose complete confidence and trust that said obligations will be fully paid and discharged, and therefore I hereby authorize and direct my Trustee to expend from the income or corpus of the residue of my said trust fund such amounts not exceeding the sum of Twenty-five Hundred Dollars ($2,500.00) in any one calendar year as may be recommended to my said Trustee by the said Ervin C. Fuhr and Ruth Fuhr, or either of them, for the payment and discharge of such confidential obligations. A letter of direction signed by the said Ervin C. Fuhr and Ruth Fuhr, or either of them, setting forth said recommendation of payment not exceeding the sum of Twenty-five Hundred Dollars ($2,500.00) in any one year shall be sufficient authority for my said Trustee to pay said sums to the persons so designated in said letter of direction.

"After the death of both the said Ervin C. Fuhr and Ruth Fuhr, and after the full payment and discharge of said confidential obligations, this trust shall continue and all the income therefrom remaining in said trust fund shall be paid quarterly to the following charitable institutions: * * *". (Italics supplied)

...