Hancock v. Twyman

• Decision Date: 10 March 1898
• Citation: 45 S.W. 68
• Parties: HANCOCK v. TWYMAN.
• Court: Kentucky Court of Appeals

45 S.W. 68

HANCOCK v. TWYMAN.

Court of Appeals of Kentucky.

March 10, 1898

Appeal from circuit court, Marion county.

"Not to be officially reported."

Action by L. D. Hancock, administratrix, against James W. Twyman and B. S. Mattingly, as trustee of James W. Twyman. From an order sustaining a demurrer of the trustee to the petition plaintiff appeals. From a judgment against defendant Twyman he prosecutes a cross appeal. Reversed.

H. W Rives, for appellant.

Sam T Spalding, for appellee.

PAYNTER J.

In May 1896, the will of Stephen T. Twyman was probated. The appellee, J. W. Twyman, was one of his children, and by the provisions of the will he was to receive one-seventh of the estate after the payment of certain small legacies. There was a codicil to the will, which is as follows, to wit: "I hereby appoint B. S. Mattingly a trustee without security for my son James W. Twyman. Said Mattingly shall have power to take possession of all the cash and other property that may be due from my estate to my said son after my death, and manage it as he may think best for the support of my said son." The appellant instituted this action against J. W. Twyman and B. S. Mattingly as his trustee. The suit is upon a note dated February 1, 1892, payable to the plaintiff. A personal judgment was sought against J. W. Twyman, and also to subject his interest in the trust estate in the hands of B. S. Mattingly, as trustee, to the payment of the debt. The court sustained the demurrer of B. S. Mattingly as trustee to the petition, and dismissed it as to him. J. W. Twyman filed an answer, and resisted a personal judgment, upon the ground that there was no consideration for the note. He alleged a state of facts which show that the plaintiff's intestate held his note for $100 and some interest; that he performed a certain service for the intestate, and in consideration of which, by an agreement between himself and the intestate, the note was paid and canceled; that after the death of the plaintiff's intestate he executed the note in suit to the plaintiff for the $100 note and interest; hence he claims the note was executed without consideration. The court sustained a demurrer to the answer of J. W. Twyman, and rendered a personal judgment against him for the amount of the note and interest, from which he prosecutes a cross appeal. There are two questions presented: (1) Did the answer of J. W. Twyman allege a state of facts which constitute a defense to the note? (2) If J. W. Twyman is bound on the note, can the trust estate in the hands of B. S. Mattingly be subjected to its payment? If it was true that the defendant performed the service for the plaintiff's intestate which was accepted in payment and satisfaction of the note, then J. W. Twyman did not owe plaintiff's intestate anything at his death. It would follow that the note was executed without...