Pope's Ex'rs v. Elliott

• Decision Date: 16 December 1847
• Citation: 47 Ky. 56
• Parties: Pope's Executors v. Elliott & Co.
• Court: Kentucky Court of Appeals

47 Ky. 56

Pope's Executors v. Elliott & Co.

Court of Appeals of Kentucky.

December 16, 1847

Wills. Devises. Trusts.

ERROR TO THE LOUISVILLE CHANCERY COURT.

Guthrie for plaintiffs

Loughborough and Bridges for defendants.

OPINION

MARSHALL CHIEF JUSTICE.

Case stated.

IN June, 1842, Robert Pope, as the surety of Godfrey Pope, and jointly with him, executed to Elliott & Co. four notes of $1,000 each, payable in one, two, three and four years. In February, 1843, William Pope, the father of Godfrey and Robert, made his will, which was admitted to record shortly after his death in 1844.

In 1846, Elliott & Co. filed this bill against Godfrey and Robert Pope, and the executors of William Pope, alleging that Robert Pope had lately received under his father's will a life estate of great value, which they pray may be subjected to their debt, of which a portion of the first note only, appears to have been paid. By the will of William Pope, a provision is made for $25 a month, to be disposed of or appropriated for the support of Robert Pope; and it appears by the answer of the executors, that said Robert having been absent in the Rocky Mountains, the monthly installments, amounting to $225 up to the first of May, 1846, had accumulated in the executors' hands. They make a question whether the $25 per month devised by the father of Robert, can be made the subject of attachment for the surety debt to the complainants, " to the avoidance of the object for which, and for which alone, it was given." Robert Pope was proceeded against as an absent defendant and did not answer.

In October, 1846, a decree was rendered directing the executors to pay to the complainants, towards the discharge of the notes above mentioned, the sum of $350, which had accumulated up to the first day of October, 1846, and also to pay the farther sum of $25 at the end of each and every month, from the said first day of October, during the life of said Robert, or until the said debt is fully discharged, reserving to the executor the right to show the failure of the trust fund in exoneration of his future liability. The basis of the decree is, that Robert Pope is, by the will of his father, entitled to $25 a month during life, out of a trust fund in the hands of the executors, and that this $25 a month may be subjected by a Court of Equity, to the satisfaction of any debt of Robert, whose non-residency and absence from the State, are alleged as special grounds for resorting to the Court. It is contended in opposition to the decree, that Robert Pope has no such interest in trust, under the will, as can be thus disposed of. This depends upon the fair construction and legal operation of the will.

Decree of the Circuit Court.

After devising his slaves, (except two which he desires to be emancipated,) to a grandson, R. C. A., on his attaining twenty-two years of age, the testator gives all the residue of his estate to his executors in trust, empowering them or the survivor, to sell his real estate. The fourth clause of the will is as follows: " Fourth. All the proceeds of my personal estate, the debts due me, the avails of my real estate, the hire or labor of my slaves until distribution, I wish disposed of as follows, viz: annually a sufficient sum to educate and support my grandson, R. C. A.; for the support of my son, James Pope, twenty-five dollars per month; for the support of my son, Robert Pope, twenty-five dollars per month; for the support of my son W.'s family and education of his children, one thousand dollars per annum; for the support of my son G.'s family, six hundred dollars per annum," & c., and directs a sale of land, if necessary, to make up these sums. The fifth clause states the advancements made to the testator's children at nearly $75,000, and states his intention to keep an account of future advancements. The sixth clause directs that on or after the first day of January, 1851, the executors, or the survivor, shall place at interest, the interest to be paid semi-annually, a sum sufficient to produce three hundred dollars per annum, " which interest they are to appropriate to the support of my son, James Pope, as long as he lives, and a like sum in like manner, for the support of my son, Robert Pope, as long as he lives. And in no event is either my son James or my son Robert, to have or receive any other portion of my estate, or the profits thereof, but each the three hundred dollars during life." At the death of James, the money placed at interest for his support, is given to the son W.'s children, and at the death of Robert, the money placed at interest for his support, is given to the grandson, R. C. A., and the children of the son G. All the estate to which Robert would have been entitled, had an equal portion been willed to him, is given, one-half to the grandson above named, and the other-half to the children of G.; and all to which James would have been entitled, if an equal portion had been willed to him, is given to the children of W.; the residue of the estate to be equally divided--one-third to go to the children of W., one-third to the children of G., and one-third to the grandson, R. C. A., subject, in each case, to a deduction for advancements made to the parents respectively.

The substance of W. Pope's will.

It appears from this synopsis of the will, that the testator gave nothing to be at the absolute disposal of either of his sons, and in fact gave nothing directly to either; that after providing for the support of two of his sons, who may be assumed to have been unmarried, and for the families of two who were married, the entire residue is disposed of among his grandchildren; and that the two sons, James and Robert, are in effect, cut off from an equal participation in the estate, and to have nothing more than the support to be furnished to each from the sum of $25 a month, amounting to $300 a year, allowed for that purpose. It is to be observed, too, that this sum is not directed to be paid to each or either of them generally, but by the 4th clause, of the estate which is held in trust, $25 per month is to be disposed of, (by the trustees of course,) for the support of each; and by the 6th clause the executors, (the trustees,) are to appropriate $300 a year, that is the same $25 a month, to the support of each. It was evidently the intention of the testator, and that is, as we think, the clear meaning of the will, not to put money in the hands either of James or Robert to spend as they please, but to secure to each a competent personal support, by placing an estate in the hands of trustees, with directions to appropriate or dispose of $25 a month for the support of each. The will imposes upon the executors the trust and duty of appropriating $25 a month, or $300 a year, to the support of Robert. The general character of the will and the nature of this particular provision, show that the testator had not confidence in the prudence or discretion of Robert, and therefore, he places in the hands of others the means, and imposes on them the duty of supplying his support. This duty they owe not only to the beneficiary, but to the testator, and to the law, if the devise is effectual according to the intention of the will. Could the executors rightfully compound with Robert and pay to him at any time, the estimated value of $25 a month during his life, or put the principal sum in his hands upon security for re-payment at his death? Could they properly pay, or would the Chancellor compel them to pay to the assignee of Robert, such estimated value or the principal sum, or even the twenty-five dollars a month, without any security for the support of Robert? Would they discharge their duty under the will, by paying even into Robert's own hands, at the beginning of every month, the sum of $25, unless they had sufficient reason to believe it would be appropriated to his support, or would not be required for that purpose?

It being clear that the testator intended to provide in the hands of his executors, a support or the means of support for Robert during his life, to the extent of $25 a month, or $300 a year, and that the executors were confided in for the appropriation for this sum for his support, it is obvious that any alienation of the fund to a different object leaving the designated purpose unaccomplished and unsecured, is a violation of the will of the testator, and of the duties of the executors if concurred in by them; and that consequently, the beneficiary himself, has not, according to the will, any right so to alienate it. It cannot be doubted then, that this decree diverting the fund altogether from its intended objects, compels the executors to a violation of the testator's intention, and in fact breaks up the provision of the will on this subject. It being in general the province of the Chancellor to execute trusts and...