U.S. Nat. Bank of Denver v. Brunton, 15255.
| Decision Date | 12 June 1944 |
| Docket Number | 15255. |
| Citation | 150 P.2d 297,112 Colo. 442 |
| Parties | UNITED STATES NAT. BANK OF DENVER et al. v. BRUNTON. |
| Court | Colorado Supreme Court |
Error to District Court, City and County to Denver; George F Dunklee, Judge.
Suit by Jessie T. Brunton against the United States National Bank of Denver, a national banking corporation, as trustee, requiring the trustee to pay to plaintiffs a certain portion of income of a trust executed by Katherine K. Brunton and for a decree interpreting the trust agreement in accordance with plaintiff's contention, and if it could not be so interpreted that it should be reformed. To review a judgment for plaintiff, the trustee, and Barbara Brunton Jacques and another, the beneficiaries, bring error.
Reversed.
Dines Dines & Holme and Milton J. Keegan, all of Denver, for plaintiff in error United States Nat. Bank of Denver.
Norma L. Comstock and Max D. Melville, both of Denver, for plaintiffs in error Barbara Brunton Jacques and David William Brunton II.
Max P Zall, of Denver, for defendant in error.
This case involves the construction of a trust agreement, dated August 29, 1927, executed by Katherine K. Brunton, as donor and the United States National Bank of Denver, as trustee. The trustee proceeded to disburse the residue of the income in accordance with Article V of said instrument which beginning with paragraph 2 thereof, is as follows:
'6. During the natural life of the said John D. Brunton nine and one-half per cent (9.5%) of the net income arising from the trust estate shall be paid by the trustee to the said John D. Brunton. [Then follows a provision in respect to this income corresponding to the provision in respect to the income allocated to Marion Brunton Baker hereinafter set forth in paragraph 8].
'7. [This paragraph 7 is the one particularly involved in this case].
'(a) During the natural life of the said Harold J. Brunton thirteen and seven-tenths per cent (13.7%) of the net income arising from the trust estate shall be paid by the trustee to the said Harold J. Brunton, but, during the life of the donor, only upon her written order and under her uncontrolled discretion. Should the said Harold J. Brunton predecease his mother, any accumulation of his share of the income shall at his death be paid as follows: one-half thereof unto his widow, and all of the remaining income (including his widow's share thereof in the event that he is not survived by a widow, or in the event that if survived by a widow such widow's rights to such income have been terminated under the provisions of Section VII hereof) unto his lawful issue, per stirpes and not per capita, or, if there be no such issue then living, then unto the lines of Frederic K. Brunton, John D. Brunton and Marion Brunton Baker, respectively, share and share alike, or to the survivors or survivor thereof.
'(b) From and after the death of the said Harold J. Brunton, the income to which he would have been entitled if living shall be paid as follows: One-half (1/2) unto his widow during her lifetime, and all of the remaining income (including his widow's share of the income in the event that he is not survived by a widow, or in the event that if survived by a widow such widow's rights to such income have been terminated under the provisions of Section VII hereof) unto his lawful issue, per stirpes and not per capita. If upon the death of the said Harold J. Brunton there shall be no such lawful issue living, or if living extinction thereof should occur prior to the termination of this trust, such income of said Harold J. Brunton shall be paid to the lines of Frederic K. Brunton, John D. Brunton, and Marion Brunton Barker, respectively, share and share alike, or to the survivors or survivor thereof.
'8. During the natural life of the said Marion Brunton Barker thirteen per cent (13%) of the net income arising from the trust estate shall be paid by the trustee to the said Marion Brunton Barker. From and after the death of the said Marion Brunton Barker the income to which she would have been entitled if living shall be paid as follows: One-half (1/2) to her husband and all of the remaining income (including her husband's share thereof in the event that she is not survived by a husband, or in the event that if survived by a husband such husband's rights to such income have been terminated under the provisions of Section VII hereof) unto her lawful issue, per stirpes and not per capita; or if there be no such issue then living, then to the lines of Frederic K. Brunton, John D. Brunton and Harold J. Brunton, respectively, share and share alike, or to the survivors or survivor thereof.'
David Brunton, husband of donor, and Katherine K. Brunton, donor, died four and five months respectively after the creation of the trust. The trust had, therefore, been performed and executed in respect to paragraphs 2 and 3 of Article V. Thereafter the question arose as to whether payments under paragraph 4 should be made exclusively to the four children who survived, or whether grandchildren then in being should immediately take under the definition of 'lines.' Article IV of the trust agreement contained a definition of family lines, i. e.: 'The line of Harold J. Brunton, son of the donor, shall consist of and shall include the said Harold J. Brunton and his lawful issue of every degree. * * *'. It concluded with the sentence: 'The lawful issue of every degree of each line shall take, as to both income and principal, per stirpes and not per capita.' We held in Brunton v. International Trust Co., 90 Colo. 48, 6 P.2d 460, that under the foregoing facts the progeny cannot share concurrently with the progenitor. Accordingly, the trustee thereafter paid all of the income due the line of Harold J. Brunton solely to Harold J. Brunton, and acted similarly in respect to the lines of the other three children of David and Katherine Brunton.
Harold J. Brunton was thus receiving one-fourth of the fifty per cent of the income under paragraph 4, or twelve and one-half per cent (12 1/2%), and the thirteen and seven-tenths (13.7%) awarded him under paragraph 7(a), or a total of twenty-six and two-tenths (26.2%) of the income. He died on November 29, 1941, leaving surviving him a widow, Jessie T. Brunton, who was his second wife. Two children born of his first wife, from whom he was subsequently divorced, Barbara Brunton Jacques and David William Brunton II, also survived him.
After his death the trustee began paying the thirteen and seven-tenths per cent of the income which he had been receiving during his lifetime under 7(a) as follows: one-half to his widow, Jessie T. Brunton, and the remaining one-half to his two above-mentioned children in accordance with 7(b). On the other hand, the twelve and one-half per cent of the income which he had been receiving under paragraph 4 during his lifetime, the trustee began disbursing to his two children in equal shares. His widow, Jessie T. Brunton, thereupon demanded that the trustee pay her one-half of the twelve and one-half per cent income which he had been receiving under paragraph 4, and upon the trustee's refusal, she brought this suit against the trustee praying that it be required to pay her, in addition to the payments already made, one-half of the twelve and one-half per cent of the income of said trust from the time of the death of said Harold J. Brunton, and continue to make such payments during her lifetime. She further asked for a decree interpreting the trust agreement in accordance with her contentions, and in the event that it could not be so interpreted by the court, prayed that it be reformed, amended and corrected so that paragraph 4 should read as follows:
'In the event that the donor does not survive said David W. Brunton, and if she survives him, then from and after her subsequent death, the income to which she would have been entitled, if living, shall be paid by the trustee to Frederic K. Brunton, John D. Brunton, Harold J. Brunton and Marion Brunton...
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