Knefler v. Shreve

• Decision Date: 13 December 1879
• Citation: 78 Ky. 297
• Parties: J. Knefler v. C. U. Shreve. Wm. Kendrick v. C. U. Shreve. S. L. Nock's ex'r v. C. U. Shreve. Sallie B. Shreve v. C. U. Shreve's Trustee.
• Court: Kentucky Court of Appeals

78 Ky. 297

J. Knefler v. C. U. Shreve.

Wm. Kendrick v. C. U. Shreve.

S. L. Nock's ex'r v. C. U. Shreve.

Sallie B. Shreve v. C. U. Shreve's Trustee.

Court of Appeals of Kentucky.

December 13, 1879

1. Under a devise of real estate to a trustee, with directions to pay over to the cestui que trust the rents as they fall due, such rents are liable in the hands of the trustee for the payment of the debts of the cestui que trust.

2. A trust will not be implied except where it is shown that the testator intended to create it where he points to the objects, the property, and the way it shall go.

3. A deed of assignment for the benefit of creditors which conveys all the real, personal, and " mixed" property of the debtor, and purports to give a schedule thereof, followed by the clause, " and any and all other property not exempt from execution which by oversight may have been omitted in the foregoing list," is held to pass to the assignee the income of property held in trust for the benefit of the debtor, although it is not mentioned in the schedule.

APPEAL FROM LOUISVILLE CHANCERY COURT.

O. A WEHLE FOR APPELLANT, JOSEPH KNEFLER.

1. The words of T. T. Shreve's will raise no trust in favor of C. U. Shreve's family. Words only assigning the motive or reason for a devise create no trust. (Benson v. Wittam, 5 Sim., 22; Thorp v. Owen, 2 Hare, 611.)

2. In cases of devises to parents, in which the children are mentioned, the tendency is to find an absolute interest in parents. (Crockett v. Crockett, 1 Hare, 451; Byne v. Blackburn, 26 Beav., 41; Webb v. Wools 2 Sim. (N. S.), 267; Fox v. Fox, 27 Beav., 301; Lambs v. Eames, L. R. Eq., C. X., 267; Curtis v Risson, 5 Madd., 434; Macnab v. Whitbread, 17 Beav., 299.)

3. In all English cases in which a trust was declared in favor of children, the words were clearly imperative. (Blakeney v Blakeney, 6 Sim., 52; Wetherell v. Wilson, 1 Ken., 86; Jubber v. Jubber, 9 Sim., 504; Ford v. Fowler, 3 Beav., 146; Dewitte v. Dewitte, 11 Sim., 41; Woods v. Woods, 1 My. & C., 401; Gilbert v. Bennett, 10 Sim., 37; Raikes v. Ward, 1 Hare, 445.)

4. The American cases are averse to implied trusts in favor of children, and give parents absolute estates where English courts would declare trusts. (Wallace v. Dold, 3 Leigh.; Harrison v. Harrison, 2 Gratt., 1; Rhett v. Mason's ex'r, 18 Gratt., 541; Spooner v. Lovejoy, 108 Mass. 529.)

5. C. U. Shreve's interest is liable to be assigned by him or subjected to his debts. At common law property given can only be kept from donee??s creditors by limitations over. (Brandon v. Robinson, 18 Ves., 429; Graves v. Dolphin, 1 Sim., 66; Piercy v. Roberts, 1 My. & K., 4; Wallace v. Anderson, 16 Beav., 533; Hallett v. Thompson, 5 Paige, 583; Bryan v. Knickerbocker, 1 Barb. Chy. R., 409; Tillinghast v. Bradford, 5 R. I., 205. Kentucky cases: Eastland v. Jordan, 3 Bibb., 186; Samuel v. Ellis, 12 B. M., 481; Samuel v. Salter, 3 Met., 263.)

6. The life estate of C. U. Shreve did not pass by any of the sweeping clauses in the deed of assignment. Sweeping clauses in assignments are restricted by specific description in the deed. (Burrell on Assignments, p. 354; Scott v. Coleman, 5 Littell, 353; Mims v. Armstrong, 31 Md. 87.)

7. Estates held in active trust like C. U. Shreve's life estate cannot be subjected to debts by fieri facias. (Coults v. Walker, 2 Leigh., 275; Briscoe v. Anderson, 12 Bush, 344; Strode v. Churchill, 2 Littell, 75; Flournoy v. Johnson, 7 B. M., 693; Blanchard v. Taylor, 7 B. M., 648.)

BARRET & BROWN FOR APPELLANTS, KENDRICK & SON.

1. The courts are not inclined to constrain construction to build up trusts by implication. (Benson v. Whittam, 5 Sim., 22; Thorp v. Owen, 2 Hare. 607; Byne v. Blackburn, 26 Beavan, 41; Webb v. Wools, 2 Sim. (N. S.), 267; Fox v. Fox, 27 Beavan, 301; Lambs v. Eames, Law Rep., X. Eq. Cases, 267; Macnab v. Whitbread, 17 Beavan, 299.)

2. In deeds of assignment the list or schedule always controls. (Burrell on Assignments, sec. 136)

3. The rule in cases of ambiguous deeds is to ascertain the motive and intent of the grantor. (Pearson v. Rice, 8 Bing., 178; Thompson v. Thompson, 2 B. Mon., 161)

4. An enlarging clause in a deed of assignment can only be applied as pointing out property of the same kind as to title as that enumerated in the list embodied in the deed. (Moore v. Magrath, Cowper, p. 11; U. S. v. Arredondo, 6 Peters, 740; Mims v. Armstrong, 31 Md. 87; Rundlett v. Dole, 10 N. H., 461; Beard v. Kimball, 11 N. H., 471)

5. A trust estate may be subjected to the debts of the cestui que trust. (Pope v. Elliott, 8 B. Mon., 86; Samuel, & c., v. Ellis, 12 B. Mon., 479; Carlin v. Carlin, 8 Bush, 142; Samuel v. Salter, 3 Met., 259.)

6. Lands held by equitable title are subject to lien and sale under execution. (Eastland v. Jordan, 3 Bibb, 187; Jones v. Langhorne, 3 Bibb, 455; Strode v. Churchill, 2 Littell, 79; Blanchard v. Taylor, 7 B. M., 648; Samuel, & c., v. Salter, 3 Met., 260; Anderson v. Briscoe, MS. Opin., 6th October, 1876.)

7. An execution levied prior to a writ of attachment gives to the execution creditor a prior lien.

JOHN C. SPENCER AND JOHN ROBERTS FOR APPELLANTS, NOCK'S EXECUTORS.

1. Trust estates are subject to the payment of the debts of the cestui que trust. (Pope's ex'rs v. Elliott, 8 B. M., 56; Samuels, & c., v. Elliott, 12 B. M., 480.)

2. Trust estates can be subjected only in equity and are not liable to levy and sale under execution. (McIlvane v. Smith, 42 Mo. 45; Bongart v. Perry, Johnson's Chancery, 55; Eastland v Jordan, 3 Bibb, 186.)

3. The wife and children of C. U. Shreve have no right to any part of his equitable life interest.

4. In deeds of assignment the schedule must govern as to what passes under the deed. (Scott, & c., v. Coleman, 5 Littell, 353.)

JAMES S. PIRTLE FOR APPELLANTS, SALLIE B. SHREVE, & C.

The intention of the testator was to give to the family of C. U. Shreve a maintenance out of the income of the trust estate, and there is no reason why that intention should not be carried out. (Cosby v. Ferguson, 3 J. J. Mar., 264; Flournoy v. Johnson, 7 B. Mon., 693; Collins v. Carlisle, 7 B. M., 13; Henderson v. Haynes, 2 Met., 349; Pope's ex'rs v. Elliott, 8 B. Mon., 59; Warner v. Bates, 98 Mass. 274.)

OPINION

PRYOR CHIEF JUSTICE:

T. T. Shreve, by his last will and testament, devised to his children a large estate, and by its provisions, after making certain specific devises, placed one half of the share devised to each child under the control of a trustee, with the direction to those dividing his estate to so allot one half of each share as to make it income-paying real estate. This half share, or rather the income to be derived from it, was devised to each child for life, remainder to his or her children, the rent to be paid by the trustee to the life tenant quarterly, after paying taxes, insurance, and keeping the property in repair. C. U. Shreve, one of the children, meeting with heavy pecuniary losses, made a conveyance of his estate to a trustee for the benefit of creditors. After this transfer was made, some of his creditors attached the income on the half share devised to him, on the ground that it was not embraced in the conveyance made for the benefit of his creditors.

Other creditors of C. U. Shreve had executions levied on this estate in the hands of the trustee and sold for their debts.

The widow and children of C. U. Shreve came into the case, alleging that, under the provisions of the will of T. T. Shreve, the income of that portion of the estate held by the trustee was for their benefit as well as that of the husband and father, and could not, to the extent of their interest, be subjected to the payment of his debts. The assignee or trustee of C. U. Shreve claims that the entire income passed to him under the conveyance made for creditors.

The nature and extent of the interest derived by the children of C. U. Shreve under the will of their grandfather, is the principal question in the case, and will be first considered. It is only necessary to notice the provisions of the will bearing on this question.

Clause 9th. " After the foregoing special devises, I wish all of my estate, of every character and description, real, personal, and mixed, of which I may die possessed, to be divided into five equal parts, having due regard to kind, quality, and income-bearing, apportioning to each share its fair proportion to each kind.

10th. After said division shall have been made, I will that two fifths of same be alloted to my two children, Charles U. Shreve and Mary E. Goodloe, one fifth to each, subject to such conditions as hereinafter named.

11th. The remaining three fifths of said division I will to my wife, Belle Sheridan Shreve, and to her three children, Mattie Belle, Thomas William, and Adele Lawrence Shreve, one fourth to each, also subject to such conditions and restrictions as are herewith named.

12th. As soon after my death as it can be conveniently done, I wish my executor, hereinafter named, after first setting apart a fund sufficient to pay the above-named special devises and incidental expenses, to make out a full and complete list and schedule of all my estate, of every character and description, real, personal, and mixed, in the state of Kentucky and elsewhere, and hand the same to the following named persons, to-wit: James H. Henning, A. C. Rodgers, and A. Harris, who, or any two of whom, I desire to proceed to value it, and divide it into five equal shares, upon the principle hereinbefore indicated. One half of each share (which half I wish to become paying real estate) I desire to be set apart and conveyed to a trustee, to be held for the use and benefit of each child during his or her life, and then to descend to his or her...