Janin v. Logan

• Citation: 273 S.W. 531,209 Ky. 811
• Parties: JANIN ET AL. v. LOGAN ET AL.
• Decision Date: 19 June 1925
• Court: Court of Appeals of Kentucky

273 S.W. 531

209 Ky. 811

JANIN ET AL. v. LOGAN ET AL.

Court of Appeals of Kentucky.

June 19, 1925

Appeal from Circuit Court, Edmonson County.

Petition by Violet Blair Janin and others, beneficiaries under a trust, seeking appointment of three named persons as trustees. From judgment declining to appoint named persons but appointing John A. Logan and others as trustees petitioners appeal. Dismissed.

Frank M. Drake, Boyce Watkins, Bruce, Bullitt, Gordon & Laurent and Wm. Marshall Bullitt, all of Louisville, for appellants.

Thomas, Thomas & Logan and Rodes & Harlin, all of Bowling Green, for appellees.

CLARKE J.

By his will, probated in 1849, John Croghan devised a large tract of land, upon which Mammoth Cave is situated, to three named trustees, to be managed by them and their successors for the use and benefit of his nine nieces and nephews and their heirs, until the death of the last surviving niece or nephew. The named trustees, or such as might act, are empowered by the will to fill vacancies "by deed or will," and new trustees so appointed are given "all the power vested in the trustees hereby appointed." At the expiration of the trust period, the trustees are empowered and directed to sell the property and divide the proceeds among the heirs of the nieces and nephews of the testator, per stirpes.

On June 18, 1924, the beneficiaries, eleven in number, filed an ex parte petition in the Edmonson circuit court, seeking the appointment of three named persons as trustees, to act in conjunction with the two existing trustees A. C. Janin and W. E. Wyatt. Two days later, and with only the petition and a copy of the will filed therewith as authority for any action upon his part, the chancellor declined to appoint the named persons, but appointed the three appellees as trustees, over the objection and exceptions of the petitioners, and they have appealed.

One of the existing trustees, Mr. Wyatt, joined in the petition simply as a beneficiary and not as a trustee, and Mr. Janin, the other trustee, was not a party thereto. Moreover, there is no allegation in the petition that the existing trustees have abused or refused to exercise the powers vested in them by the will, or that they have been remiss in any way in the management of the estate entrusted to their care. Upon the other hand, the petition alleges that these two trustees, whose right and ability to act is not questioned, have been acting since 1872, and that during all of that time the affairs of the estate "have been managed in a proper and suitable way, and that the various heirs and interested parties have received the income from the estate as provided under the terms of the will."

The only ground stated in the petition for interference by the court in the matter is that "it is desirable that three additional trustees be appointed, that these three additional trustees be selected from the various groups of heirs, and your petitioners recommend and suggest the appointment of" three named parties, who are alleged to be "suitable and proper persons, well qualified and competent to perform the duties of trustee of this estate."

That no cause of action was stated against the trustees, if they had been made parties defendant, is at once apparent. It is equally clear that they were necessary parties, since plainly the beneficiaries of a trust cannot confer upon a court of equity jurisdiction to divest trustees of powers conferred upon them by the instrument creating the trust, by their ex parte petition, or without making the trustees parties to the proceeding, and giving them an opportunity to be heard. An ex parte proceeding necessarily presupposes a right in the petitioners to which...