Weakley v. Meriwether

• Decision Date: 05 December 1913
• Citation: Weakley v. Meriwether, 156 Ky. 304, 160 S. W. 1054 (Ky. Ct. App. 1913)
• Parties: WEAKLEY et al. v. MERIWETHER et al.
• Court: Kentucky Court of Appeals

160 S.W. 1054

156 Ky. 304

WEAKLEY et al. v. MERIWETHER et al.

Court of Appeals of Kentucky.

December 5, 1913

Appeal from Circuit Court, Shelby County.

Suit by C. S. Weakley, as executor of the estate of L. A. Weakley deceased, and trustee of George Meriwether, against George Wood Meriwether and others. From the judgment, plaintiff appeals, and defendants prosecute a cross-appeal. Affirmed on both appeals.

Trabue Doolan & Cox, of Louisville, and Elliott B. Beard, of Shelbyville, for appellants.

Elmer C. Underwood, of Louisville, for appellees.

CLAY C.

Richard Meriwether died in Shelby county, Ky. in the year 1871 leaving a last will and testament. By the sixth item of his will he bequeathed ten Louisville & Portland Canal bonds of the value of $1,000 each and a claim which he had against his brother George Wood Meriwether to his executor and trustee "in trust for the sole and separate use and benefit of my brother, George Wood Meriwether, during his life and the interest and income thereon to be paid over to my said brother, George Wood Meriwether, annually or semiannually as it may arise and no more."

The claim against George Wood Meriwether was invested in a tract of land consisting of 102 acres. This tract of land was finally sold, and since April 13, 1900, has been represented by a note of W. I. Fry for $3,458.15.

David Meriwether, a brother of Richard Meriwether, was appointed executor of his will and trustee of George Wood Meriwether. He qualified as such, and continued to act until his death, when J. L. Caldwell was appointed administrator de bonis non and also trustee of George Wood Meriwether. Caldwell acted as trustee until the year 1882, when L. A. Weakley, a lawyer and business man of high standing, was appointed in his place. L. A. Weakley continued to act as trustee until his death in August, 1895. On November 18, 1895, C. S. Weakley, a brother of L. A. Weakley, the former trustee and executor of the latter's will, was appointed trustee. While Caldwell was acting as trustee he sold the ten bonds at their par value, and held the proceeds of the sale, amounting to $10,000, up until his death. This sum he turned over to L. A. Weakley, trustee. While L. A. Weakley made no separate investment of the $10,000, but commingled it with his own property, he regularly charged himself with interest at the rate of 6 per cent. per annum on a basis of biannual settlements. Whenever he made any payment to Meriwether he entered up a charge of interest against Meriwether until the end of the period of their next biannual settlement. Meriwether, it seems, was constantly incurring debts and anticipating his income. As a result of this he became indebted to L. A. Weakley in a large sum. No settlements in court were made by L. A. Weakley; but it appears that in the year 1892 Meriwether gave L. A. Weakley a note for $3,073.13, evidencing the result of a settlement made at that time. To secure this note George Wood Meriwether mortgaged his life interest in certain real estate, and also assigned to L. A. Weakley a life insurance policy for $1,525, and one for $3,000. After L. A. Weakley's death the present trustee, C. S. Weakley, as executor of L. A. Weakley, made a settlement of the accounts of L. A. Weakley in the Shelby county court, and as a result of this settlement it was found that George Wood Meriwether was indebted to L. A. Weakley in the sum of $4,710.82. For this amount Meriwether executed his note to C. S. Weakley, executor of L. A. Weakley, and at the same time pledged the life insurance policies above mentioned to secure the payment of the note. When this settlement was made, the order of court recites that the ward was present and acknowledged the settlement to be just and correct. The note for $4,710.82 was afterwards canceled, and on August 18, 1907, a new note for $4,651.19 was executed in lieu thereof. After the qualification of C. S. Weakley as trustee, Meriwether began to incur debts and overdraw his income. On this account he became indebted to C. S. Weakley, and executed to him two notes, one for $485, and the other for $310, each dated February 10, 1897. These notes were secured by mortgages on life insurance policies payable in part to the children of George Wood Meriwether, and assigned by some of the children to C. S. Weakley. On May 28, 1906, Meriwether, for a further advancement, executed to C. S. Weakley a note for $142, securing it by the pledge of a life insurance policy. Since his qualification as trustee, C. S. Weakley has made biennial settlement of his accounts in the county court.

This action was brought by C. S. Weakley, as trustee of George Wood Meriwether, and as executor of his brother, L. A. Weakley, against George Wood Meriwether and others for a three-fold purpose: (1) To settle his accounts as trustee from August 18, 1907; (2) to collect the three notes for $310, $485, and $142, respectively, and to enforce the lien securing same; (3) to collect the note for $4,658.06 due the estate of L. A. Weakley.

After filing various pleadings which were subsequently abandoned, George Wood Meriwether predicated his defense on a second amended and reformed answer, set-off, and counterclaim, wherein he pleaded that by mistake the various county court settlements erroneously charged him with interest not legally due, and that certain commissions allowed the trustee were not properly allowed.

On final hearing the chancellor held that the income from the trust estate should be treated as accruing annually, and interest charged thereon accordingly, instead of charging interest upon settlements of income at biennial rests, the plan adopted by the...