Young's Trustee v. Bullen

• Decision Date: 17 December 1897
• Citation: 43 S.W. 687
• Parties: YOUNG'S TRUSTEE v. BULLEN.
• Court: Kentucky Court of Appeals

43 S.W. 687

YOUNG'S TRUSTEE v. BULLEN.

Court of Appeals of Kentucky.

December 17, 1897

Appeal from circuit courts, Henderson county.

"Not to be officially reported."

Action by Charles W. Bullen against H. M. Young, Sudie S. Young, and Harry Soaper, trustee of Sudie S. Young, to subject the trust estate to payment of a debt. Judgment for plaintiff, and Harry Soaper, trustee, appeals, and plaintiff files cross appeal. Affirmed.

Yeaman & Lockett, for appellant.

S. B. &amp R. D. Vance, for appellee.

WHITE J.

H. M Young and Sudie S. Young are husband and wife, and in the year 1888 lived in Kansas City, state of Missouri, and while there they borrowed from the Continental National Bank of St Louis, Mo., of which appellee was cashier, the sum of $5,000.

This note was renewed several times; and each time signed by the wife and husband. There was $2,500 paid on this note to the bank, and finally appellee, through whose influence with the bank the loan was made, himself paid off the note to the bank, and took the note of Mrs. Young and her husband for the amount so paid. This note to appellee, Bullen, was renewed several times, but the last renewal, and the one sued on, was signed in the state of Pennsylvania, and sent by mail to appellee in St. Louis, Mo.; Young and wife having left the state of Missouri, and moved to the state of Pennsylvania. This action is brought by appellee on the last renewal, and by it he seeks to subject the estate of Sudie S. Young that is in the state of Kentucky, Henderson county, in the hands of a trustee appointed by the will of Sudie S. Young's father, to the payment of this note. The petition filed makes both Sudie S. Young and her husband and Harry Soaper, trustee, parties defendant. There was an affidavit for warning order filed, the same was made, and attorney appointed to defend. The appellee also took a copy of the petition and summons, and obtained service in the state of Pennsylvania, as provided by section 56, Civ. Code. Actual service was had on the trustee, and he alone filed answer, and denied the right of appellee to subject any part of the trust estate in his hands to the payment of appellee's note, and pleads that Sudie S. Young is one of the children of William Soaper, who died testate in Henderson county, and by the will of said Soaper, which was duly probated, etc., it is provided as follows: "Item 8. It is my will, and I direct, that the property of every kind herein devised to my daughters shall be held in trust for their separate use and benefit by my sons, Richard H. Soaper, Thomas Soaper, William Soaper, and Harry Soaper, and my sons-in-law, L. C. Dallam and S. K. Sneed, but I authorize each of my daughters, from the persons above named, to select one as and for her trustee, and the trustee so selected shall exercise the trust for and on behalf of her so selecting him, exclusive of the others above named as trustees. The said trustee, with the written consent of my daughters and their husbands, if they have any, shall have the absolute control and management of said property, and may loan out, sell, invest, or reinvest it, as to them may seem best. My said daughters shall have the use of said property, and the absolute right to its annual profits or proceeds, my object being to preserve the principal in such shape as they may prefer during their lives, and that at their death it shall go to their children, and, in default of children, to their right heirs, or persons as they may by last will and testament appoint." The property in the hands of the trustee is 10 bonds of $1,000 each of the city of Henderson, and 294 acres of land in Henderson county.

It is alleged in the answer of the trustee that Sudie S. Young is a married woman, and has children living. It is contended by the trustee that Sudie S. Young, under the will of her father, took only a life estate in the property devised to her, with remainder to her children, or to such person as she might appoint, and that the said property was not subject to appellee's debt. This answer of the trustee denies that the note sued on is the debt of the married woman, Sudie S. Young, but charges that the same was and is the debt of her husband, H. M. Young, alone. Sudie S. Young nor her husband, H. M. Young, ever appeared or answered, or made any defense to the action. The case was tried by the chancellor upon the testimony of appellee, Bullen, and of proof of the laws of the state of Missouri.

The court rendered judgment ascertaining the amount due on the note, adjudging it to be the debt of Sudie S. Young, and that the rents and interest of her property situated in Henderson county were subject to its payment, and directed the appellant, trustee, to pay the debt of appellee out of the rents of the land and the interest on the bonds as they are collected by him; but the court did not subject the property itself to the payment of the debt,-only its income,-and adjudged appellant to pay to appellee $125, rents collected and then in his hands. From this judgment the trustee alone appeals, and contends that Sudie S. Young and her husband were not before the court at the date of the rendition of the judgment, or at all, and that no judgment could be rendered against her or her husband, subjecting her property in Henderson county to the payment of appellee's debt, and that the service had by delivery of a copy of the petition and summons to Sudie S. Young and H. M. Young in the state of Pennsylvania was not an actual service, but only constructive, and, if constructive, the judgment was erroneous, because no bond was given, as required by the Code in cases of constructive service. Chapter 2, tit. "Service of Summons," art. 1, which includes ...