Wheeler v. First Alabama Bank of Birmingham

• Decision Date: 22 December 1978
• Citation: 364 So.2d 1190
• Parties: M. Wayne WHEELER, as guardian ad litem of the Unborn Descendants of Robert I. Ingalls, Sr. v. FIRST ALABAMA BANK OF BIRMINGHAM et al. Samuel Marks BOYKIN, III, By and Through his duly appointed guardians ad litem, and Robert I. M. Boykin v. FIRST ALABAMA BANK OF BIRMINGHAM et al. Elesabeth Ridgely SHOOK and Ellen Gregg Shook By and Through their duly appointed guardian ad litem, Richard S. Riley v. FIRST ALABAMA BANK OF BIRMINGHAM et al. * 77-288, 77-289 and 77-290.
• Court: Alabama Supreme Court

Page 1190

364 So.2d 1190

M. Wayne WHEELER, as guardian ad litem of the Unborn Descendants of Robert I. Ingalls, Sr. v. FIRST ALABAMA BANK OF BIRMINGHAM et al.

Samuel Marks BOYKIN, III, By and Through his duly appointed guardians ad litem, and Robert I. M. Boykin v. FIRST ALABAMA BANK OF BIRMINGHAM et al.

Elesabeth Ridgely SHOOK and Ellen Gregg Shook By and Through their duly appointed guardian ad litem, Richard S. Riley v. FIRST ALABAMA BANK OF BIRMINGHAM et al. ^*

77-288, 77-289 and 77-290.

Supreme Court of Alabama.

Dec. 22, 1978.

J. H. Crow, III, Birmingham, for appellant, M. Wayne Wheeler as guardian ad litem (etc.).

Alex W. Newton and James L. North, Birmingham, as guardians ad litem for Samuel Marks Boykin, III and for Robert I. M. Boykin, appellants.

Richard S. Riley, Birmingham, as guardian ad litem of Elesabeth Ridgely Shook and Ellen Gregg Shook, appellants.

H. L. Ferguson, Jr. and Samuel H. Frazier, Birmingham, for Richard S. Riley, as guardian ad litem of Elesabeth Ridgely Shook and Ellen Gregg Shook, appellants.

Reid B. Barnes and John E. Grenier, Birmingham, for appellee, First Alabama Bank of Birmingham as Trustee of Ingalls Trusts B, C, D, E and F Wm. Bew White, Jr. and Hobart A. McWhorter, Jr., Birmingham, for appellee, Barbara I. Shook.

J. Michael Rediker, Birmingham, for appellee, Elesabeth Ingalls Gillet.

A. Key Foster, Jr., Birmingham, for appellee, The Ingalls Iron Works Co.

BLOODWORTH, Justice.

This appeal is from a judgment granting motions for summary judgment in favor of the bank and two individuals, Barbara Ingalls Shook and Elesabeth Ingalls Gillet, as cotrustees, on cross-claims and counterclaims filed by the appellants, who claim the right to share in the distribution of income from six trusts as descendants (grandchildren) of Robert I. Ingalls, Jr.

The trusts, designated Ingalls Trusts B, C, D, E, F, and G, were created by members of the Ingalls family using primarily Ingalls Iron Works Company stock as trust corpus. Trusts B, E, and F were created by Robert I. Ingalls, Sr., Trusts C and G by his wife Ellen G. Ingalls, and Trust D by his only child, Robert I. Ingalls, Jr. Trust G was purportedly terminated in 1973. First Alabama Bank of Birmingham is trustee of Trust D and co-trustee of the other four trusts. Elesabeth Gillet is co-trustee of Trusts B, C, E, and F, and Barbara Shook is co-trustee of Trusts B, C, and F. These trusts have been the subject of much litigation and have been before this Court on at least two prior occasions. Ex parte Ingalls, 266 Ala. 45, 93 So.2d 753 (1957); Ingalls v. Ingalls, 256 Ala. 321, 54 So.2d 296 (1951).

In this most recent action, First Alabama Bank of Birmingham filed a petition for partial settlement as trustee or co-trustee of the trusts (except Trust G). Parties to the proceeding included Barbara Ingalls Shook and Elesabeth Ingalls Gillet (only children of Robert I. Ingalls, Jr.), Robert I. M. Boykin and Samuel M. Boykin, III (only children of Elesabeth Gillet), Elesabeth R. Shook and Ellen G. Shook (only children of Barbara Shook), and M. Wayne Wheeler (guardian ad litem for unborn descendants of Robert I. Ingalls, Sr.). The Bank also filed a "Special Proceeding" seeking approval of a written agreement between the Bank, Ingalls Iron Works Company, and others.

The Boykins filed counterclaims against the Bank and cross-claims against their mother, Elesabeth Gillet, and aunt, Barbara Shook. The Shooks filed similar cross-claims and counterclaims. These claimants, who are the only grandchildren of Robert I. Ingalls, Jr., seek in the aggregate approximately $3 million, alleging that the Bank, Mrs. Gillet, and Mrs. Shook, as co-trustees, wrongfully distributed the entire income of the six trusts to Mrs. Gillet and Mrs. Shook. The grandchildren assert that they have a present right to the income and that each grandchild is entitled to a one-third share of the amount which has already been distributed to his or her mother, in effect, a per capita distribution.

The co-trustees filed motions to dismiss or motions for summary judgment on the cross-claims and counterclaims. The trial judge treated the motions to dismiss as motions for summary judgment, considering matters outside the pleadings, e. g., two prior cases involving the same trusts, the trust instruments themselves, and a supporting affidavit. The grandchildren filed no affidavits in opposition to summary judgment. The trial court granted the motions for summary judgment and, expressly determining under Rule 54(b) that there was no just reason for delay, entered final judgment against the grandchildren. They, along with the guardian ad litem for unborn descendants appeal, with the three co-trustees and Ingalls Iron Works Company as appellees.

The grandchildren challenge the propriety of granting summary judgment in this case. They contend that the question of the settlors' intent as expressed in the trust provisions is a disputed question of fact.

Summary judgment is, of course, not properly granted unless there are no genuine issues of material fact and the application of law to the undisputed facts is correct. Gurley v. Bank of Huntsville, 349 So.2d 43 (Ala.1977).

The terms of the trusts as written are not disputed. The identity of the individual parties as descendants of Robert Ingalls, Jr., is uncontradicted. What should prevent the grant of summary judgment, the grandchildren contend, is that the trusts are ambiguous, presenting a disputed question of fact as to the settlors' intent. The grandchildren allege that language in the preambles and in certain provisions of the trusts reveals the intention to allow all living descendants of Robert Ingalls, Jr., to share in the distribution of trust income, as opposed to the trial court's finding that the trust provisions mandate a per stirpes distribution with Mrs. Shook and Mrs. Gillet as presently the sole beneficiaries entitled to income.

The construction of a written document is a function of the court. Smith v. Blinn, 221 Ala. 24, 127 So. 155 (1929). If the document is unambiguous, its construction and legal effect is a question of law which may be decided, under appropriate circumstances, by summary judgment. See Bible Baptist Church v. Stone, 55 Ala.App. 411, 316 So.2d 340 (Civ.App.1975). Moreover, only when a trust term is ambiguous may there be resort to extrinsic evidence. Whitfield v. Matthews, 334 So.2d 876 (Ala.1976).

The pertinent portions of the trusts alleged to be ambiguous are as follows:

Trust B

"That for and in consideration of the sum of One Dollar and other good and valuable considerations by the Grantor received, and for the sole purpose of providing his granddaughters, ELESABETH RIDGELY INGALLS and BARBARA GREGG INGALLS, and any other grandchildren or descendants who may be hereafter born, with an income, so that they may be assured of some degree of financial independence, the Grantor has transferred and assigned, and by these presents does transfer and assign unto the Trustees the property described in 'Exhibit A' hereto attached and made a part hereof by reference; as well as any other items of property which hereafter may be granted, conveyed, assigned, transferred and delivered unto said Trustees under the terms hereof;

"TO HAVE AND TO HOLD the same unto the said Trustees, their successors and assigns, but in trust nevertheless, for the uses and purposes, upon the terms and conditions and with the powers and duties hereinafter stated."

"(b) The Trustees shall hold said trust estate in trust for the use and benefit of such of the descendants of Grantor's son, ROBERT I. INGALLS, JR., including Grantor's granddaughters, Elesabeth Ridgely Ingalls and Barbara Gregg Ingalls, as may from time to time during the duration of the trust be living, in equal shares per stirpes. Until each such descendant shall attain the age of twenty-one years, the Trustees shall use and apply for his or her support, education, expenses of travel, and comfort, such part of his or her share of the net income from said estate and of the principal thereof as the Trustees deem necessary or desirable for said purposes. . . . From and after the time when any such beneficiary shall attain the age of twenty-one years, the Trustees shall transfer and pay over to such beneficiary all of his proportionate share of the entire net income from said trust estate and also such additional sum or sums out of the principal of said trust estate as the Trustees may in the absolute exercise of their discretion deem necessary or desirable from time to time for his or her proper support, education, expenses of travel, and comfort.

"(c) . . . In any event that any principal distribution is made to any beneficiary under the foregoing provisions of the within Section (c) hereof, the Trustees shall at the same time set apart for the benefit of all other beneficiaries then sharing in the benefits of said trust estate, in equal shares, per stirpes, other property constituting a part of the principal of said trust estate equivalent in value for each beneficiary per stirpes to the value of the property so distributed, and the Trustees shall thereafter hold such other property so set apart for each such other beneficiary in trust for the benefit of such other beneficiary as provided in Section (d) hereof. It is recognized that because of the different ages of beneficiaries, of the probable fluctuations in the values of property, and of the possible birth of other beneficiaries after distributions have been made hereunder, inequalities among beneficiaries hereunder may result, and there is consequently vested in the trustees hereunder full power and authority in the absolute exercise of their discretion to equalize or adjust as between beneficiaries differences as to income or as to principal growing out of prior distributions or growing out of changes in valuation of properties constituting said trust estate or growing out of the later birth...