Radford v. Fidelity & Columbia Trust Co.

• Decision Date: 21 October 1919
• Citation: 185 Ky. 453,215 S.W. 285
• Parties: RADFORD ET AL. v. FIDELITY & COLUMBIA TRUST CO.
• Court: Kentucky Court of Appeals

215 S.W. 285

185 Ky. 453

RADFORD ET AL. v. FIDELITY & COLUMBIA TRUST CO.

Court of Appeals of Kentucky.

October 21, 1919

Appeal from Circuit Court, Jefferson County, Chancery Branch, Second Division.

Action by Alice Radford and another against the Fidelity & Columbia Trust Company. Judgment for defendant and plaintiffs appeal. Affirmed.

Trimble & Bell, of Hopkinsville, J. E. Williamson, of Evansville Ind., and Henry Burnett, of Louisville, for appellants.

Humphrey Crawford, Middleton & Humphrey and Chas. Milner, all of Louisville, for appellee.

HURT J.

Margaret Dean Willis was a young unmarried woman, and resided in Nashville, Tenn., and on May 20, 1907, while in Louisville Ky. entered into articles of agreement with the Columbia Finance & Trust Company, the predecessor of the appellee, Fidelity & Columbia Trust Company, which has succeeded to all the rights and liabilities of its predecessor, and by which articles she assigned and delivered to the first-named trust company, as a trustee for her, securities to the value of $34,500. Under the terms provided for in the contract, the trust company agreed to hold the securities, and such others as they might be converted into, and to invest and reinvest the same, and to pay over to the trustor the income arising from the securities, as the same should accrue, and in any event to pay to her the sum of $150 per month, so long as the trust fund, principal and interest, would make such payment; but, in the event the trustor should become mentally incompetent, then the trustee, in its discretion, might apply the entire fund, principal and interest, to her maintenance. The trustor was not to have the right to assign or transfer, nor to anticipate in any way, the principal or interest, nor was same to be subject to her debts; but she reserved the right to change the trustee, under the deed of trust, at any time, upon reasonable notice in writing to the trustee naming another trustee, in which event the trustee would convey the funds to the substitute named, together with all the duties, trusts, and obligations set out in the contract. As compensation for its services, the trustee was to receive 5 per centum of the income which it should derive from the trust funds. The contract also contained the following stipulations:

"At the death of the said Margaret Dean Willis, the said trustee will pay over so much of said fund as may then remain in its hands, to such person or persons, as the said Margaret Dean Willis may appoint by last will and testament, and in default of such appointment, shall pay over such part of said fund to Elizabeth Jones Haile, daughter of Eustice A. Haile, of Nashville, Tennessee, and Alice Radford, daughter of Walter A. Radford, of Christian county, Kentucky, share and share alike."

Thereafter, Margaret Dean Willis removed to and became domiciled in the city of Evansville, Ind., where she intermarried with Walter W. Weintz, who was also domiciled in the same state. About four months after the marriage, she died; but before her death she executed a last will and testament, by which it is claimed by the appellee trust company that she exercised the power of appointment which she had reserved in the contract or deed of trust, and that by her will she had designated her husband as the party to whom it should pay the trust funds in its hands at her death. The will was duly probated, in the proper court designated for that purpose, by law, in the state of Indiana, and was thereafter duly probated in the county court of Jefferson county, Ky. wherein the appellee has its place of business, as a valid will of such real and personal property, as the testatrix owned at the time of her death in the state of Kentucky. The appellee continued to hold the trust funds; but whether upon the same terms and conditions as were prescribed in the trust deed between it and the original trustor, or whether upon other terms and conditions agreed upon between it and Walter W. Weintz, does not appear, until after the death of Weintz, which occurred about four years after the death of his wife, when it paid over the funds to the persons entitled by law to receive the property of Weintz following his death.

The appellants, Elizabeth Jones Haile and Alice Radford, instituted this action against appellee trust company, alleging that under the deed of trust, upon the failure of Margaret Dean Weintz (née Willis) to appoint some person by last will and testament to whom the funds should be paid upon the death of Mrs. Weintz, the funds became their property and should be paid to them, and that Mrs. Weintz did not by her last will and testament make any appointment, and in violation of its trust the appellee had delivered the funds to others, and sought a judgment for the sum remaining in the hands of the trustee at the death of Mrs. Weintz, after deducting two devises of $1,000 each provided for by the will, which left the amount sought to be recovered the sum of $32,000. The appellee, by answer, set up the terms of the will as the authority for its action. A general demurrer to the answer was overruled. The appellants then filed a reply, to which a general demurrer was sustained, and, appellants declining to further plead, their petition was dismissed and they have appealed.

It is conceded that, if Mrs. Weintz did not, by her last will and testament, exercise the power of appointment of some one to whom the trustee should pay the funds in the event of her death, which power she had reserved in the trust contract, it was the duty of the trustee, under the trust contract, to deliver the funds to the appellants, an equal share to each, upon the death of Mrs. Weintz, and whether she did make such an appointment must be determined from her will. The parts of her will which it is necessary to consider in this connection are the following:

Part of the preamble is as follows:

"And I, the said Margaret Willis Weintz, desire and intend, by this will, to will, give, bequeath, devise and dispose of all my property and estate, which shall include all real, personal and mixed property, belonging to me, both in and out of my possession, as follows, to wit."

The first clause is a direction that her debts be paid.

The second clause devises to her husband $1,000 to be used by him in the erection of a monument at her grave.

The third clause devises the sum of $1,000 to Mrs. Martha Cabaniss, of Evansville.

Fourth clause:

"I will, give, bequeath and devise all the remainder and residue of my said estate and property, which shall and does include all personal property, real estate, money, promissory notes, bonds, stock, certificates of deposit, trusts, money and property held in trust for me, choses in action, rights and creditors, clothing, jewelry, heirlooms, and everything of value of whatsoever kind and nature belonging to me, absolutely and fully, to my beloved husband, Walter W. Weintz. And it is my will, that as to all my property, money and estate now held in trust for me, by the Fidelity Trust Company, at the city of Louisville, Kentucky, after the payment of all my debts and the payment of the amount for the purchase and erection of the monument, and the carrying out of clause two (2) of this will, and, also, the payment of the sum of one thousand dollars ($1,000.00) to said Martha Cabaniss, as provided in clause three (3) of this will, that the principal of the residue thereof, shall be held in trust for my said husband, Walter W. Weintz, for a period of twenty years, or until his death; but, that all income, use, rents, benefits, and proceeds thereof, after the payment of the necessary and reasonable expenses of and taxes on said trust and property, shall, during the existence of, and the time of this trust, be paid to said Walter W. Weintz at any and all reasonable periods of time. That the said trustee, or trustees, of said trust, shall be selected and named by my said husband, Walter W. Weintz; that said trustee shall, at all times, give a good and sufficient bond, surety and indemnity payable to said Walter W. Weintz, for the purpose of securing and to fully protect and save all of said estate and property, and said Walter W. Weintz from any and all loss and damages, whatsoever, and the faithful performance and carrying out of this trust and of this part of my will, and of the delivery and payment of all of said trust and trust property to said Walter W. Weintz, at the expiration of this trust; that this said trust shall terminate and end at the expiration of said twenty years, or earlier, in the event of the death of said Walter W. Weintz. And I authorize and empower my said husband, Walter W. Weintz, to make and enter into such agreements and contracts with the trustee or trustees of said trust during the time and continuance thereof, as he, the said Walter W. Weintz may deem just and for the best interests of this trust and of himself, as to the uses, payments of interest, income and benefits, and all other acts and things to be done in the matter of said trust and for the proper accounting thereof at any time, and of the payment and delivery of said trust and trust property at the expiration of said trust, or the removal or resignation of any trustee thereof. And I hereby authorize and empower my said husband, Walter W. Weintz, at any time, he may think proper so to do, and for any cause, whatever, to remove any trustee or trustees and he is to select another trustee in the place thereof, who shall give like security and for the purposes as herein before stated; and I request my said husband to name and permit the trustee now acting for me, to wit, the Fidelity Trust Company, at Louisville, Kentucky, to be and act as the trustee under the provisions of this will, so

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