Weston v. Weston

• Decision Date: 30 January 1947
• Docket Number: 15910.
• Citation: 41 S.E.2d 372,210 S.C. 1
• Parties: WESTON v. WESTON et al.
• Court: South Carolina Supreme Court

41 S.E.2d 372

210 S.C. 1

WESTON v. WESTON et al.

No. 15910.

Supreme Court of South Carolina

January 30, 1947

Herbert & Dial and McKay & McKay, all of Columbia, for appellants.

C T. Graydon and John Grimball, both of Columbia, for respondent.

STUKES Justice.

T. I Weston was separated and afterward divorced from his wife Mrs. Alma D. Weston. A formal contract was entered into by them on July 8, 1932 which provided, among other things, that Mr. Weston should pay Mrs. Weston for separate maintenance $150 on the first of each month, build her a home of limited cost and pay the taxes and insurance premiums on it. There was a provision for flexibility in the amount of the monthly payments which depended upon the possible fluctuation in Weston's income, and the amount was afterward increased to $172.50 per month. The present controversy arises largely out of the construction of the fourth paragraph of the agreement which is as follows 'No. 4: The said T. I. Weston shall provide Ten Thousand Dollars ($10,000.00) of insurance and make such assignment to the Trustee holding the real estate as will protect the said Alma D. Weston in an income and annuity during her life, she to will any residue of such insurance to such persons as she may see fit, or the same to pass at her death to her legal heirs; and the said T. I. Weston further to assign to such Trustee one-half of the stock owned by him in the Weston & Brooker Company to be held by such Trustee during the life of the said T. I. Weston and after his death during the life of the said Alma D. Weston to insure the payments provided under this contract; the said stock, however, to be the property of the said T. I. Weston and to pass under his will or to his heirs when the trust herein provided is terminated.'

Mr. Weston later executed an acknowledgment, dated July 8, 1940, which confirmed the foregoing agreement and in which he was joined by his brother and trustee, W. S. Weston, of which the now relevant provisions are as follows:

'We further acknowledge that one-half of the stock owned by T. I. Weston in the Weston & Brooker Company is held by W. S. Weston as Trustee to insure the payments provided for under the aforesaid contract and in accordance with paragraph 4 of same.

'We further acknowledge that W. S. Weston as Trustee has in his possession two insurance policies, one being New York Life Insurance Company policy No. 6698608 for five thousand dollars ($5,000.00) and the other being Mutual Life Insurance Company of New York policy No. 2422034 for five thousand dollars ($5,000.00) both policies being payable to Alma D. Weston under the terms of the agreement dated 8th, July, 1932. There is no loan or debt against either of said policies and the premiums on same have been kept and will be kept up by T. I. Weston and no loan made against either of them without the written consent of the said Alma D. Weston.'

Subsequently to the agreed separation and divorce from his first wife Mr. Weston married the plaintiff in this action, now respondent, Mrs. Blanche H. Weston, and died in November 1940. He left a will dated a few months before, of which Mrs. Blanche H. Weston was executrix and W. S. Weston executor. It purports to dispose of considerable other property but our present concern is only with testator's stockholdings in Weston & Brooker Company referred to in item IV of the will, which is as follows:

'Item IV: I am now the owner and holder of six hundred seventy-one (671) shares of the capital stock of the Weston & Brooker Company and I hereby given, devise and bequeath the same unto my brother, W. S. Weston, and in the event of his death to his son, W. S. Weston, Jr., in trust, nevertheless for the following uses and purposes: 'To hold such stock and vote the same, collect the income thereon and pay such part of the income from one-half thereof, to Alma D. Weston as may be necessary to comply with the terms and provisions of a certain contract by and between the said Alma D. Weston and T. I. Weston (there being two insurance policies the proceeds of which are to be used in complying with said contract and it is my intention that only such part of the income from the said Weston & Brooker stock shall be used to supplement the income from the said insurance policies as may be necessary to comply with the said contract). One-half of the balance of the income from the said stock but not less than the sum of $200.00 per month, I hereby direct my trustees to pay over to my wife Blanche H. Weston during the term of her natural life, and the other one-half of the balance of said income my trustees shall pay over to my brother W. S. Weston or in the event of his death such income shall be paid to his children, share and share alike, and after the death of Alma D. Weston and subject to the charge thereon in favor of Mrs. Blanche H. Weston, I give, devise and bequeath the said stock unto my brother W. S. Weston in fee simple and forever, and in the event of his death prior to the termination of the two interests herein set forth, then to his children, share and share alike as soon as said interests terminate.

'With the power to my said trustee in his absolute discretion to sell and dispose of said stock or any part thereof at such time and for such price or prices as he may deem advisable and to invest and re-invest the proceeds upon the identical terms and provisions, and for the same uses and purposes as are herein made for the said stock. The income from such investments and the corpus of same to be distributed exactly as herein provided for the income and corpus of said stock.'

Upon their returns, which we need not consider, the executor and executrix were discharged as such, as having fully performed their duties, and Letters Dismissory were issued by the Probate Court on September 22, 1943. This suit was brought by Mrs Blanche H. Weston in August 1944 against W. S. Weston as trustee under the will of her husband and upon his motion Mrs. Alma D. Weston was added as a defendant by order of the Court.

The complaint contains allegations of the foregoing transactions and that the trustee has in hand approximately $22,000, cash proceeds of the trust created by item IV of the will of T. I. Weston, of which plaintiff is entitled to be paid one-half, less legal costs and commissions, which the trustee retused after demand, and has failed to pay her the stipulated $200 per month during the seven months preceding the commencement of the action, with prayer for judgment for payment of the funds claimed.

The trustee answered that plaintiff had been paid more than the aggregate of $200 per month and upon her demand he had paid her all of the proceeds of the income from one-half of the shares of the stock, and now has in hand no funds from which to properly continue monthly payments of $200; that pursuant to the contract of 1932 between T. I. Weston and Mrs. Alma D. Weston, for the separate maintenance and support of the latter, the assignment by T. I. Weston to his brother, W. S. Weston, as trustee, was made of one-half of his stockholdings in Weston & Brooker Company, which assignment and trust were confirmed by the will of T. I. Weston, and that the answering defendant holds the funds referred to in the complaint as trustee under the terms of the contract and will and that plaintiff has no claim thereto during the lifetime of Mrs. Alma D. Weston, for the security of whose monthly payments the funds were held, which payments had been increased, with the consent of the plaintiff, in former litigation, to $172.50 per month; and that Mrs. Alma D. Weston is a proper and necessary party to the action.

The latter was added as a defendant by the Court, as has been mentioned, and she answered similarly to the trustee, and that she is an invalid, dependent for support upon the monthly payments and then alleged (but offered no supporting evidence at the trial) as follows: 'The Weston & Brooker Company is a private corporation and the stock has no sale on the open market; that the value of the stock is dependent almost entirely upon the efficiency of its management and the proper operation of its business, which consists of the quarrying and crushing of stone; that obviously its quarry holdings are being continuously diminished and that its efficient operation is largely dependent upon the continued management of W. S. Weston; that in view of the continued diminution of the holdings referred to, the uncertainties of life and of the economic conditions, in order to insure the carrying out of the agreement for the maintenance of this defendant, it is necessary that the Trustee exercise his right and discretion to hold intact the shares of stock and the dividends therefrom in order to perform the responsibilities of his trust and to preserve the rights of this defendant to maintenance and livelihood under the agreement referred to.'

The testimony was taken by the Master, upon which the case was heard and decided by the Court and upon a stipulation that Mrs. Alma D. Weston was in November 1945 sixty years old and Mrs. Blanche H. Weston fifty-one, and the former an invalid confined to her bed and rolling chair; further that the policies of insurance upon the life of T. I. Weston which were payable to Mrs. Blanche H. Weston were surrendered to the companies which thereupon agreed to pay her life annuities aggregating $920. The latter is immaterial in the present controversy and there is found in the record no evidence of the insurance annuity or annuities accruing to Mrs. Alma D. Weston, although it appears that she receives some such fixed sum which is applied on her monthly contract amount of $172.50, so from the dividends she receives some lesser amount which makes up the...