Nashville Trust Co. v. Dake

• Decision Date: 04 April 1931
• Citation: 36 S.W.2d 905
• Parties: NASHVILLE TRUST CO. v. DAKE et al.
• Court: Tennessee Supreme Court

Page 905

36 S.W.2d 905

NASHVILLE TRUST CO. v. DAKE et al.

Supreme Court of Tennessee.

April 4, 1931.

Appeal from Chancery Court, Davidson County; James B. Newman, Chancellor.

Suit by the Nashville Trust Company, trustee, against Mary Dudley Dake and others. On appeal from the Court of Appeals.

Decree in accordance with opinion.

M. P. O'Connor, of Nashville, for complainant.

Bass, Berry & Sims, Samuel N. Harwood, W. P. Cooper, L. D. Smith, and Seth M. Walker, all of Nashville, for defendants.

CHAMBLISS, J.

The trust company, as trustee, seeks construction in certain particulars of the will of Mrs. Adelaide Wiggin Dake, who died in 1926. She left her estate of about $102,000 in trust, the net income to go to her daughter, Bessie Dake Wilson, for her life, and at her death the trust estate to be divided between two granddaughters.

The bill shows that before the death of Mrs. Dake, Richard P. Dews represented the daughter, Mrs. Wilson, in a divorce case, and later obtained a judgment against her for his fee of $5,000. While conceded that this creditor cannot enforce payment against this trust estate during the life of Mrs. Wilson, the creditor claims that at her death, and before division of the corpus of the trust estate between the granddaughters — or in the event of the death of either of them, other alternative beneficiaries — this debt must be paid. Reliance is had upon the following clause of the will:

"IV. Upon the death of my said daughter, Elizabeth Church Dake Wilson, my trustee shall out of my trust estate pay all the just debts of my said daughter at the date of her decease existing and all expenses of her interment, and thereafter my trustee shall divide the trust estate into two (2) equal portions or shares and dispose of and pay the same as follows," etc.

The specific claim is that this judgment comes within the term "just debts." Construction is sought of this clause, the view of the trustee and of the defendants in interest, other than Mr. Dews, being that this is not a debt of the character contemplated by the testator.

The expectancy of Mrs. Wilson, forty-seven years of age on the filing of this bill, is stated to be something more than twenty years. Obviously, if this were all, the bill would be premature, either under the Declaratory Judgments Act (Pub. Acts 1923, c. 29), set up in the bill, or under the general authority of a trustee to seek the aid of the Court. "The statute does not contemplate declarations upon remote contingencies," or upon abstract, remote, or incidental questions. Hodges v. Hamblen County, 152 Tenn. 395, 277 S. W. 901. Nor will a bill lie by a trustee to construe a will unless the court can afford immediate relief. The court will not declare future rights, or decide upon and determine contingencies which may or may not ever arise. White v. Kelton, 144 Tenn. 327, 232 S. W. 668. This judgment creditor has no possible enforceable rights in præsenti. His claim, as against this estate, is one that may arise twenty or more years from now. His judgment may not be then in force, for either of several reasons. For example, the life tenant may, possibly, voluntarily discharge the debt before her death, or the creditor may subject property which she may acquire independently of this trust estate, as by bequest, or through marriage, and thus satisfy his claim, without recourse to the trust estate to pass to these grandchildren of the testatrix. Again, the parties in interest may change, and those who may succeed to the rights of the grandchildren ought hardly to have their rights prejudged and abridged so long in advance, even though before the court by appointive representation. It seems clear that a declaration on a construction or of an issue so remote, and subject to such contingencies, should not be...