Moorman v. Louisville Trust Co.

• Citation: 181 Ky. 30
• Parties: Moorman, et al. v. Louisville Trust Company, et al.
• Decision Date: 11 June 1918
• Court: Kentucky Court of Appeals

Page 30

181 Ky. 30

Moorman, et al. v. Louisville Trust Company, et al.

Court of Appeals of Kentucky.

Decided June 11, 1918.

Appeal from Jefferson Circuit Court (Common Pleas Branch, Second Division).

HUMPHREY, MIDDLETON & HUMPHREY and TRABUE, DOOLAN & CRAWFORD for appellants.

HELM BRUCE, BEN F. WASHER, FRED FORCHT, LAWRENCE LEOPOLD and BRUCE & BULLITT for appellees.

OPINION OF THE COURT BY JUDGE CLARKE — Affirming.

This is an appeal from a judgment of the Jefferson circuit court dismissing, without prejudice, an appeal from a judgment of the county court probating a will, prosecuted in the name and for an infant devisee and heir of the testator by a next friend, and the only question involved is whether in so doing the trial court abused a sound judicial discretion.

The written opinion of the lower court, made a part of the record, sets forth so admirably the facts and issues and proves so conclusively the power and duty of the court, in the exercise of a sound judicial discretion, to control the action of the next friend so as to safeguard the interests of the infant, it is, to that extent, adopted and is as follows:

"C. P. Moorman died in the city of Louisville, Kentucky, on February 13, 1917, having theretofore, on March 17, 1916, and March 18, 1916, made, in due form his will, and a codicil thereto, in which he devised a large estate, according to the record more than two million three hundred thousand dollars, how much more does not appear, upon which there is an annual income of more than one hundred thousand dollars, how much more does not appear; he left as his sole descendants and heirs at law a son, C. P. Moorman, Jr., and a granddaughter, the appellant, Lucy Elizabeth Moorman, a daughter and the only child of his deceased son, Elmore B. Moorman. By his will he made a number of specific devises, one, a substantial one, of fifty thousand dollars, to Joan Moorman, the widow of his deceased son, Elmore Moorman, mother of Lucy Elizabeth; the other specific devises were not large. He nominated the Louisville Trust Company as executor and trustee of certain trusts under his will. The thirteenth clause of his will is as follows:

"`Thirteenth. I direct my executor, with the approval of the committee aforesaid, to divide all the rest and residue of my estate, real and personal, into two equal parts, and I devise and bequeath one of such parts to the Louisville Trust Company in trust for my son, Charles P. Moorman, Jr., for and during his natural life, subject to the following limitations: so much of the income accruing from this portion as may be necessary shall be used by said trustee, under the direction of the committee, for the proper and comfortable support of my son, Charles, and after his death the principal and unused income of this share shall be disposed of as in this will hereinafter directed.

"`I devise and bequeath the other of two said two equal parts to the Louisville Trust Company, in trust for my granddaughter, Lucy Elizabeth Moorman, for and during her natural life, subject to the following limitations; so much of the income from said portion as may be necessary shall be used by the trustee, under the direction of said committee, for the proper and liberal support of my said granddaughter and her family, should she have one. I direct that the income from this portion, not devoted to the support of my granddaughter, as aforesaid, shall be accumulated by the trustee and held as the property and estate of my said granddaughter until such accumulation shall have reached the amount of two hundred thousand dollars; when my granddaughter arrives at the age of twenty-five years said two hundred thousand dollars shall be paid to her as her absolute estate, but in the event the accumulations do not amount to such sum at said time, then the trustee shall continue to apply the surplus income, as aforesaid, until said amount shall have been accumulated, at which time it shall be paid to her. So long as my granddaughter lives she shall receive such portion of the income of this trust as is required for her liberal support and that of her family, if any, as hereinbefore provided.

"`Should my said granddaughter die at any time leaving issue surviving her the trust shall continue until the youngest of such issue living at her death attains the age of 21 years, and so much of the income from this portion of my estate as the committee may deem proper shall be used by the trustee for the support and education of such issue until the time above designated, when this trust shall cease, and the principal and accumulated income of this share of my estate shall be distributed per stirpes among such issue.

"`Should my granddaughter die leaving no issue surviving her, or should such issue die without issue surviving before attaining the age of 21 years, then the share left for my said granddaughter in this will shall be employed for the same uses and purposes as the share of my son, Charles P. Moorman, Jr., and pass under this will as said share passes.'

"The seventeenth clause of the will is in these words:

"`If any person receiving any benefit under this will shall, directly or indirectly, resist its probate or seek in any way to contest it, or vacate or annul any of its provisions, then in such event the person so doing, or for whom any one authorized by law to act shall do so, shall forfeit all interest in my estate under this will or otherwise, and my estate shall be distributed under this will as though such person had died before me, leaving no issue surviving him or her.'

"By the fourteenth clause of the will, he provides for the organization and establishment by a committee, which he nominated for that purpose, of a public charity for indigent old women, to be known as `The Charles P. Moorman Home for Women.' The will provides elaborately for the management of the home; for the care and management of the estate; it provides also elaborately for the care and keeping of his son, Charles P. Moorman, Jr., whom he refers to as an invalid.

"There are various provisions in the will which are not pertinent to the issue now before the court and it is unnecessary to discuss them. The will was probated on February 17, 1917, and the defendant, Louisville Trust Company, qualified as executor and accepted the trust imposed by the will. On February 24, 1917, Joan Moorman, mother of Lucy Elizabeth, qualified as her guardian, and on March 27th thereafter resigned, and on that day the Kentucky Title Savings Bank & Trust Company was appointed by the county court, duly qualified and is now the statutory guardian of Lucy Elizabeth Moorman.

"On August 23, 1917, Lucy Elizabeth Moorman, the infant, through Nicholas H. Dosker, her next friend, filed statement of appeal, alleging that the paper probated was not the true last will and testament of C. P. Moorman, deceased, because of lack of testamentary capacity, and also because of undue influence exercised in its making, in which all the parties interested were made defendants and duly summoned, including the executor and trustee, the Louisville Trust Company, and the statutory guardian, Kentucky Title Savings Bank & Trust Company, and Charles P. Moorman, Jr. The trustee and Charles P. Moorman, Jr., filed special demurrer to the statement on the ground that the plaintiff and appellant has not the legal capacity to sue or maintain the proceeding; they also moved the court to require the next friend to execute bond to protect Lucy Elizabeth Moorman against loss or damage which may be sustained by reason of the proceeding; they file also a plea in abatement on the general ground that the proceeding is against the real interest of Lucy Elizabeth Moorman, and further, that Joan Moorman, while she was guardian accepted as guardian certain benefits under the will. The appellant files answer to the plea in abatement denying the contention that the proceeding is against the best interest of Lucy Elizabeth, and denying also that Joan Moorman, as guardian, accepted anything under the will other than certain items of expense for the maintenance and care of Lucy Elizabeth, and exhibit copies of correspondence between the Kentucky Title Savings Bank & Trust Company, guardian of Lucy Elizabeth, and Mrs. Elizabeth C. T. Warren, maternal grandmother of Lucy Elizabeth, and also letter from Mrs. Warren to Nicholas Dosker, and a letter from Dosker to counsel for appellant in this case. In a response, the defendants disclaim any plea of estoppel, on the ground that Joan Moorman, as guardian, accepted benefits under the will, but aver that the facts thus pleaded were for the purpose of bringing before the court the question of the right of Nicholas Dosker to sue as next friend, because, as the defendants claim, such action is against the best interests of the infant.

"The statutory guardian, Kentucky Title and Savings Bank & Trust Company, though a party to this suit, has not responded in any way, and while, as appears in its letter to Mrs. Warren, it declines to prosecute the appeal, it nowhere says that in its judgment the appeal ought not to be prosecuted by a next friend.

"Mrs. Joan Moorman, while she was guardian, did not prosecute the appeal, and since she had a fifty thousand dollar bequest under the will, she perhaps would not be expected to jeopardize her personal interest to have the validity of the will tested, so that her failure, while she was the guardian, and the failure of the present statutory guardian, the Kentucky Title Savings Bank & Trust Company, do not aid the court in determining whether or not this appeal should be prosecuted.

"It is manifest upon the record that if the appeal is prosecuted, whatever the infant would gain through the appeal, the executor and trustee would lose, and whatever the infant would lose by reason of the appeal, the executor and trustee would gain, and therefore the advice from the executor that the proceeding is in conflict with...