Stratton v. Stratton's Adm'r

• Decision Date: 26 September 1912
• Parties: STRATTON et al. v. STRATTON'S ADM'R.
• Court: Kentucky Court of Appeals

149 S.W. 900

149 Ky. 473

STRATTON et al. v. STRATTON'S ADM'R.

Court of Appeals of Kentucky.

September 26, 1912

Appeal from Circuit Court, Logan County.

Action by Mirtie T. Stratton's administrator against J. W Stratton and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Petrie & Standard, of Elkton, for appellants.

Browder & Browder, of Russellville, for appellee.

CARROLL J.

The husband of Mirtie T. Stratton took out insurance on his life for her benefit in the sum of $1,000. During the life of the policy he had it changed, so as to make it payable to Lon Stratton as trustee for his wife. After the death of the husband, Lon Stratton collected the amount of the insurance and, with the exception of a small sum paid to the widow used it in the payment of debts that he claimed had been contracted by the husband. In a suit by Mirtie Stratton against Lon Stratton to recover the amount of the insurance a judgment was rendered against him for the full amount received from the company, less certain credits that he was given for payments made out of it. An execution on this judgment having been returned "No property found," this action, after the death of Mirtie T. Stratton, was brought by her administrator against J. W. Stratton, the father, and Clarence Stratton, a brother of Lon Stratton. The action against them grew out of the fact that it appeared in the suit by Mirtie T. Stratton against Lon Stratton that Lon Stratton had paid out of the insurance money for the benefit of J. W. Stratton $530 and for the benefit of Clarence Stratton $47.71; and, proceeding upon the theory that the money so paid to them by Lon Stratton was a trust fund, she sought to recover it. Judgment having been rendered in favor of her administrator for the amounts claimed, the Strattons prosecute this appeal.

The first error assigned is that the general demurrer interposed to the petition of the administrator should have been sustained, upon the ground that the petition did not state a cause of action. We are unable to agree with counsel in this view of the matter. The petition set out that after Lon Stratton, as trustee for Mirtie Stratton, had collected the insurance money, he wrongfully and fraudulently paid to J. W. Stratton and Clarence Stratton the amounts claimed. It was further averred that each of them had notice of the existence and terms of the trust, and, knowing that the fund was a trust fund, participated in the fraudulent misappropriation of it by the trustee. We think the petition stated a good cause of action, and that the court correctly overruled the demurrer to it.

The next objection urged to the judgment is that the evidence did not sustain the averments of the petition that the sums mentioned were paid to J. W. and Clarence Stratton. The evidence shows that the $530 with which J. W. Stratton was charged was paid by Lon Stratton to the mortgagee to satisfy a mortgage that a third person held on the...