Pinckard v. Ledyard

• Decision Date: 20 January 1949
• Docket Number: 6 Div. 779.
• Parties: PINCKARD v. LEDYARD.
• Court: Alabama Supreme Court

38 So.2d 580

251 Ala. 648

PINCKARD v. LEDYARD.

6 Div. 779.

Supreme Court of Alabama

January 20, 1949

Rehearing Denied Feb. 17, 1949. [Copyrighted Material Omitted]

Drennen & Drennen, of Birmingham, for appellant.

Thos B. Hill, Jr., Jas. J. Carter and Hill, Hill, Stovall & Carter, all of Montgomery, for appellee.

Item II(b) of the codicil and Item II(c) of the original will are, respectively, as follows:

'(b) To apply and pay out, from time to time, so much of the net income and interest of my estate as to give each of my two children, Thomas L. Pinchard and Mary C. Pinckard, comfortable maintenance and support, and a good, thorough and finished education, and, if need be, to spend for each of them such portion of the corpus of my estate as may be necessary on account of sickness and keep such child in good health; and such portion of such net interest and income as may, from time to time, be not so used, may be converted by my trustee, and his respective successors, into principal or corpus of my estate, but may, later, in the discretion of my trustee, or his respective successors, be again converted into and used as interest or income for the purpose expressed in this paragraph. Should either of my said children die leaving surviving a lineal descendant, or descendants, such descendant or descendants, shall in lieu of such child, while living and during the lifetime of my other child, be entitled to and receive such income for support and maintenance as such deceased child would have received if living, until

final payment and distribution is made as provided in paragraph (d) infra.'

'(c) My said Trustee, or his successors may, from time to time, make advancements by paying to either of my said children, when over twenty-one years of age and before final distribution is made, such portion of the net interest or income, not spent or used as provided in paragraph (b) supra, as, in the discretion and good judgment of my said trustee, or his successors, should, from time to time, be so paid to such child, and such payments shall be charged against such child, without interest, when final division and distribution is made as hereinafter provided.'

Item II(d) of the codicil is as follows:

'(d) Subject to the provisions of paragraphs (a), (b), and (c) supra, to keep the corpus and unexpended net interest and income together for accumulation, as such trust fund, so invested and reinvested until the death of the survivor of my said two children, Thomas L. Pinckard and Mary C. Pinckard, and, as soon as practicable thereafter to pay out and distribute the whole of such balance and residue of my estate one-half per stirpes to the child or/and children and their decendants of said Thomas L. Pinckard and one-half per stirpes to the child or/and children and their decendants of said Mary C. Pinckard, and if either have then living no child, children or their decendants, the whole shall go per stirpes to such child, children and their descendants of my other child, and if at that time there be then living no such child, children or their descendants of either of my said children, my entire estate, as it exists at that time, shall be divided into two parts, as near equal in value as possible, one of which shall go to and be paid to my mother and brothers and sisters, Mary M. Ledyard, Robert E. Ledyard, C. H. Ledyard, J. P. Ledyard, and Fannie L. Oliver, or the survivor or survivors, and if any of them be dead at the time, such one's part shall go and be paid to such one's heirs, devisees or legatees; and the other part, one-half, shall go and be paid to James B. Dryer, Edmund H. Dryer, Della F. Dryer, Percival L. Dryer and Rena Dryer Williams, or the survivor or survivors, and if any one of them be dead at that time such one's part shall go and be paid to such one's heirs, devisees or legatees: Provided, however, that during the period of time after October 13, 1937, and before the death of the survivor of my two said children, Thomas L. Pinckard and Mary C. Pinckard, my then trustee is given the absolute power and discretion to pay over and deliver to either of may said children or per stirpes to the child, or children or their decendants of my such child, if dead, one-half of my estate and then or subsequently during such period, in the exercise of such absolute power and discretion, to pay over and deliver to the other child the other one-half of my estate, or, if one be dead without leaving then living a child, children or lineal descendants, in the exercise of such absolute power and discretion to pay over and deliver during said period the whole to the other, and such payment and delivery during such period shall vest in such person to whom so paid and delivered an indefeasible estate in fee in and to such part so paid over and delivered; but such trustee can exercise such absolute power and discretion only during said period intervening between October 13, 1937, and the time of the death of the survivor of my said two children, Thomas L. Pinckard and Mary C. Pinckard, and should not do so unless convinced that so to do is to the best interest of the person in whose behalf such discretion and power is so exercised.'

Paragraph 23 of the bill as amended is as follows:

'Twenty-Third: That the trust estate is now reasonably worth approximately $200,000.00 or more than the average weekly income of $39.21, being paid by respondent trustee to complainant is wholly insufficient for the support and maintenance of complainant and complainant supplements same by earnings from his own personal service and manual labor as a carpenter and by engaging in other honorable occupations. That complainant is a total abstainant from all intoxicants and is not wasteful or prodigal and is frugal and is industrious, self respecting and respected, and fully capable of managing his own property and affairs and has been successful

in the control and management of the limited income and the money that he has been able to earn by his personal services. That the distribution to him of his equitable ownership of the reasonable value of $100,000.00 in the trust estate will enable him to occupy his place in life and will be conducive to his sense of security, tranquility, health and happiness and will terminate expense of the trusteeship over the same and said distribution is to his best interest and no good reason exists why the same should not be made.'

Pertinent parts of the prayer of the amended bill are as follows:

'* * * and upon a final hearing of this cause, a decree be granted giving a construction of the will and codicil of Lucy L. Pinckard, deceased and directing and ordering respondent J. P. Ledyard, as trustee under the will of Lucy L. Pinckard, deceased, to pay over and distribute one half of the corpus and unexpended income and interest to complainant and to file in this court a report of his acts and doings as such trustee, and a statement and schedule of the assets that have come into his possession as such trustee and of all receipts and disbursements and to render an accounting and for all such other, further, different and more general relief as he may be entitled to, etc.'

Item V of the will is as follows:

'Item V: In any report to any court, partial or final, it shall not be necessary or be required that any vouchers or receipts be filed or produced, unless the correctness of the items to which it relates is affirmatively disputed in court, and, except by decree or specific order of court for good cause shown, no inventory or schedule of my estate shall be filed; but my said trustee, and his successors, shall give any beneficiary any and full information as to the assets of the estate, and how, when and for what purpose paid out and distributed; but the said trustees, and their successors, shall safely keep an accurate history and schedule of all assets, and an accurate itemized record and book of account of all receipts and disbursements made by them of my estate, and all such history, schedules, records, books, accounts and papers, shall be open to examination and inspection of any beneficiary at all reasonable times.'

FOSTER, Justice.

This is an appeal from a decree sustaining a demurrer to a bill as amended, and dismissing it.

The bill is filed by Thomas L. Pinckard, one of two beneficiaries in a trust, against the trustee and the other beneficiary Mary C. Pinckard Isom. The other beneficiary has also made appearance and filed demurrer. After the bill was amended she took no further interest in the litigation and has not appeared on the appeal.

The two beneficiaries were the only children of Lucy L. Pinckard, whose husband had died and left to her by will an estate valued at about $200,000.00. She died April 28, 1929; and left a will dated August 31, 1928, as amended by codicil dated November 15, 1928. They were probated as her will. The questions here raised relate to the effect of this will and codicil of Mrs. Lucy L. Pinckard. It is not ambiguous or uncertain in its meaning.

It provides for a trust including all of the estate. Appellant and Mary C. Pinckard Isom were named as sole beneficiaries except on a contingency, not necessary to consider now.

At the time of the execution of the codicil, appellant was approximately twenty-one years old (and Mary C. Pinckard was nineteen), and at the time of the death of testatrix he was twenty-two and Mary C. Pinckard (Isom) was twenty years old. The income was to be disposed of as provided in Item II(b) of the codicil, and (c) of the original will (which appear in the report of the case). None of the corpus is alleged to have been distributed as there provided.

Item II(d) as amended by the codicil is as set out in the report of the case.

October 13, 1937,...