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or largely,” was stolen from plaintiff and so used, were subject to special demurrer. Ibid.
Where it is claimed by a person that funds of his have been used by another in paying premiums for insurance on the latter's life, the burden is on the one asserting such a claim to prove that his funds were so used. Bromley v. Cleveland, C. C. & St. L. R. Co. (1899) 103 Wis. 562, 79 N. W. 141.
It has, however, been held that it is not necessary to prove the wrongful appropriation, or the tracing of the funds beyond a reasonable doubt, or,
in proving that they were used to pay the premiums, to show that the identical bills or specie abstracted were so employed. TRUELSCH V. NORTHWESTERN MUT. L. INS. Co. (reported herewith) ante, 914.
It may be noted in this connection that the giving of notes and duebills to the agent of the insurance company for the premiums has been held not to negative a claim that the premiums were paid by moneys embezzled. See the reported case (TRUELSCH V. NORTHWESTERN MUT. L INS. Co. ante, 914).
H. C. J.
FIDELITY & COLUMBIA TRUST COMPANY, Trustee, etc.,
JOSEPH K. GWYNN.
Kentucky Court of Appeals - January 27, 1925.
(- Ky. - 268 S. W. 537.) Trusts, $ 53 - for epileptic — right to cancelation.
1. One placing his property in trust for his own benefit because he is subject to epileptic attacks may have the trust canceled when he is restored to health.
[See note on this question beginning on page 941.] Trusts, § 53 cancelation cessa- Evidence, § 729 – parol to show tion of purpose.
purpose of trust. 2. The cancelation of a trust created to protect the cestui que trust
3. Parol testimony is admissible to from the consequences of ill health,
establish the purpose for which propunfortunate habits, or improvidence
erty was placed in trust where the will be decreed when the cause for its creation no longer exists.
settlor is living and is the sole bene[See 26 R. C. L. 1210. See also note ficiary of the trust. in 2 A.L.R. 579.]
[See 26 R. C. L. 1201, 1203.]
CROSS APPEALS from a judgment of the Chancery Branch, Second Division, of the Circuit Court for Jefferson County in favor of plaintiff in an action brought to cancel a trust; defendant appealing from so much of the judgment as entitled plaintiff to a cancelation, and granted consequential relief; and plaintiff appealing from so much as denied him the right, at his election, at any time to revoke, alter, or modify the trust agreement. Affirmed on both appeals.
The facts are stated in the Commissioner's opinion.
Messrs. Trabue, Doolan, Helm, & Coleman v. Fidelity Trust & S. V. Helm, for defendant:
Co. 28 Ky. L. Rep. 1263, 91 S. W. 716; It would seem that a trust of the Middleton v. Shelby County Trust Co. kind in question can be revoked in 21 Ky. L. Rep. 183, 51 S. W. 156; AnKentucky only when an express power derson v. Kemper, 116 Ky. 339, 76 S. of revocation is contained in the trust W. 122; Downs v. Security Trust Co. agreement.
175 Ky. 789, 194 S. W. 1041.
Mr. Thomas J. Wood, for plaintiff : to be held by it under the terms of
When the causes which led to the a trust agreement which empowered creation of a trust have ceased to ex- the trustee to manage and invest the ist, and the purposes for which it was
money, and required it to pay him created have been accomplished, the the net income therefrom in monthtrust should be terminated. Perry, Tr. & Trustees, & 920; 26 R.
ly instalments during his life. The C. L. p. 1210; Weakley v. Buckner, 91
trust agreement contained this furKy. 457, 16 S. W. 130; Downs v. Secu
ther provision: “Upon the death rity Trust Co. 175 Ky. 789, 194 S. W. of the party of the first part, this 1041; Avery v. Avery, 90 Ky, 613, 14 trust shall cease and the principal S. W. 593.
of the trust estate shall pass in acA cestui may be said to be the sole cordance with the last will of the beneficiary of a trust under the terms party of the first part. Should the of which the income is to be paid to
party of the first part fail to exerhim for life, and upon his death the
cise said right of testamentary distrust is to cease and the property held thereunder to pass according to his
position, the principal of the trust will, or, should he die intestate, to his
estate shall pass unto the heirs of heirs, as determined by the laws of
the party of the first part as dethe state.
termined by the laws of the state of Nuckols v. Davis, 188 Ky. 215, 221 Kentucky then in force.” It did not S. W. 507; Mayes v. Kuykendall, reserve to the settlor the right or Ky. — 112 S. W. 673; Pryor v. Castle.
power of revocation or by its terms man, 9 Ky. L. Rep. 967, 7 S. W. 892; assign any reason for the creation Stephens v. Moore, 298 Mo. 215, 249 S. of the trust. By this proceeding, W. 601; Burton v. Boren, 308 Ill. 440,
had by virtue of and pursuant to the 139 N. E. 868. Where property is conveyed to a
provisions of the declaratory judgtrustee purely for the benefit and con
ment law, a cancelation of the trust venience of the settlor, who is, under
is sought by appellee upon the the terms of the trust agreement, the
ground that the execution of the sole beneficiary, he should have the trust agreement was procured by power to annul or modify the trust
undue influence; that the purpose whenever he may see fit.
for which the trust was created has Frederick's Appeal, 52 Pa. 338, 91 been accomplished; and that he, the Am. Dec. 159; Russell's Appeal, 75 Pa. settlor of the trust, having volun269; Rick's Appeal, 105 Pa. 528;
tarily created it for his own benefit, Ewing v. Wilson, 132 Ind. 223, 19 L.R.A. 767, 31 N. E. 64; Aylsworth v.
no one else being interested, has the Whitcomb, 12 R. I. 298; Avery v.
right to have the same canceled at Avery, supra; Brannin v. Sherley, 91
any time. Ky. 450, 16 S. W. 94; Middleton v.
The chancellor adjudged a canShelby County Trust Co. 21 Ky. L.
celation of the trust, upon the Rep. 183, 51 S. W. 156; Anderson v. ground that the purpose for which Kemper, 116 Ky. 339, 76 S. W. 122; it was created no longer exists, and Coleman v. Fidelity Trust & S. V. Co. that therefore the trust should be 28 Ky. L. Rep. 1263, 91 S. W. 716; canceled; but adjudged that the Beard v. Beard, 173 Ky. 131, 190 S. W.
trust agreement was not procured 703, Ann. Cas. 1918C, 832; Downs v. by undue influence, and that the setSecurity Trust Co. 175 Ky. 789, 194 S. W. 1041; Schriver v. Frommel, 179 Ky.
tlor of a trust who is also its sole 228, 200 S. W. 327; Burton v. Burton,
beneficiary cannot have it canceled 198 Ky. 429, 248 S. W. 1031; Perry,
at any time upon his application. Tr. & Trustees, $ 104, p. 132; 26 R. C.
An appeal by the trustee and a cross L. p. 1211.
appeal by the settlor and cestui que Sandidge, C., filed the following
trust have been prosecuted from opinion:
that judgment, presenting to us On November 14, 1921, appellee, three questions: (1) Was the exJoseph K. Gwynn, delivered to ap
ecution of the trust agreement propellant, Fidelity & Columbia Trust cured by undue influence? (2) Did Company, as trustee, $24,000 in cash the chancellor properly adjudge that
(- Ky. 268 S. W. 537.) the purpose for which the trust was spendthrifts and those possessed of created had been accomplished, and ill health or unfortunate habits. that, therefore, the trust should be The principle seems to be well escanceled? (3) Has one who volun- tablished in this court that where tarily creates a trust for his own the moving cause for the creation benefit, in a case where no one else of the trust was to protect the has or takes any beneficial interest cestuis que trustent under the trust agreement, the right from the conse- cancelationat any time to cancel and annul the
quence of ill health, cessation of trust?
unfortunate habits, That the execution of the trust or improvidence, when the cause agreement was procured by undue no longer exists the reason for the influence is not urged for appellee on trust ceases, and its cancelation will his cross appeal, and we will con- be decreed. See Avery v. Avery, 90 sider that question as being waived. Ky. 613, 14 S. W. 593; Middleton v. The chancellor's judgment as to it Shelby County Trust Co. 21 Ky. L. is undoubtedly correct.
Rep. 183, 51 S. W. 156; Anderson Appellant insists that the chancel- v. Kemper, 116 Ky. 339, 76 S. W. lor erroneously adjudged that the 122; Downs v. Security Trust Co. purpose for which the trust was cre- 175 Ky. 789, 194 S. W. 1041. ated has been accomplished, and Applying that principle to the that therefore it should be canceled. facts of this case, we find that the The principle of law that the parties trust agreement itself does not disinterested may have a trust can- close what motive prompted appellee celed when the purposes for which to deliver his estate to appellant to it was created have been accom- hold in trust for him. It is agreed plished seems everywhere to be rec- by the parties, however, that he was ognized. Perhaps the principle has prompted to do so because for a been given a wider application than number of years he had been subwas contemplated when it was first ject to attacks of epilepsy, the freestablished. The principle seems quency and severity of which seem originally to have been enunciated to have increased as time passed by, in cases where property was deeded until, as a result of his ailment, apto a trustee as security for the debts pellee was unable to engage in busiof the settlor of the trust, and upon ness, his physical condition became the payment of the debts, the pur- greatly impaired, and his soundness pose for which it had been created of mind was seriously threatened. having been accomplished, reason It is agreed that appellee was thereno longer existed for its continu- by moved to deliver his estate to apance. Consequently, it was held pellant as his trustee, and to exthat the settlor of the trust was en- ecute the trust agreement in questitled to its cancelation and a re
It appears from the record conveyance of the property em- herein that for a period of three braced in the trust. Other kindred years prior to the institution of this situations calling the principle into proceeding appellee has not had an use might be cited. The field cov- attack of epilepsy; that for more ered by the principle has been grad- than two years he has been actively ually broadened until now it seems engaged in business for himself; to be recognized, under certain cir- and that he now apparently is comcumstances, as broad enough to cov- pletely restored in health. Under er spendthrift trusts and such trusts these facts, the chancellor adjudged as unfortunate habits and ill health that, the reason for which the trust upon the part of the cestui que trust was created no longer existing, and have caused to be created. A num- no one being interested save appelber of cases in Kentucky have rec- lee, who is both the settlor and the ognized the principle as applying to cestui que trust, he is entitled to its trusts created for the protection of cancelation. It is obvious from the
1 right to cancelation.
record that appellee's ill health seem to have been held to be the moved him to create the trust. It settlor and cestuis que trustent. It seems equally obvious that the cause seems never to have been regarded no longer exists. Under those cir- as necessary to procure the consent cumstances, in view of the principle of the trustee. It is said in Perry above enunciated, long recognized on Trusts, $ 920: “A trust will not
in this court, we be continued merely that the trustee -for epileptic
hold that the chan- may continue to receive compensa
cellor properly ad- tion from it. If the cestuis desire judged a cancelation of the trust for its termination it will not be mainthe reason above.
tained for the benefit of the trusThe admission of parol testimony tee." in this case, to establish the purpose It would seem logically to follow for which this trust was created, is that where the settlor of the trust not in conflict with the rule laid voluntarily places his'estate in trust down in Carpenter v. Carpenter for his benefit alone, making himself (Carpenter v. Sturgeon) 119 Ky. the sole cestui que trust, regardless 582, 68 L.R.A. 637, 115 Am. St. Rep. of the reason for his so doing, or 275, 84 S. W. 737, that parol evi- whether the reason continues to exdence cannot be introduced to show ist or not, he should at any time have the settlor's motive, where it was the right to demand its cancelation. not expressed in the trust paper. However, that right does not seem In that case the trust was created heretofore to have been recognized
by will; the settlor by this court, for, in Middleton v. Evidenceparol-to show of the trust was Shelby County Trust Co. 21 Ky. L. purpose of trust. dead. Here the set. Rep. 183, 51 S. W. 156, Coleman v. tlor of the trust is living, and he al- Fidelity Trust & S. V. Co. 28 Ky. so is the sole cestui que trust. L. Rep. 1263, 91 S. W. 716, and It is insisted by appellee on cross
Downs v. Security Trust Co. supra, appeal that since he is both the set- the right of the settlor, who also tlor and the cestui que trust, and no was the cestui que trust, to cancel other beneficial interest or estate in the trust, was denied in cases where the property placed in trust was he alone took an interest under the created by the trust agreement, he trust agreement. Regardless of the has the right at any time to have the general rule above, the court in those trust canceled and annulled. The cases seems to have been actuated by trust agreement provided that the the particular facts presented. The trust should terminate upon the question being presented to a court death of the appellee. The provi- of equity under particular facts sion for the disposition of the trust that made it manifest that the best estate upon his death, quoted above, interest of the beneficiary demanded clearly does not create any further that the trust remain in force, in beneficial interest or estate in the each of those cases the court detrust property. Appellee alone by
Appellee alone by clined to cancel the trust. In the the trust agreement was granted a Coleman Case, 28 Ky. L. Rep. 1263, beneficial interest in the trust es- 91 S. W. 716, the question was tate. Consequently, the only person squarely presented, because there in interest, so far as this trust the settlor and sole cestui que trust agreement is concerned, seems to be were one and the same, and he conappellee, Joseph K. Gwynn, since he tended that he had the right for that is both the settlor and cestui que reason to annul the trust at any trust. There seems to be a generally time. The right was denied.
. recognized principle that a trust However, as the question is premay be revoked at any time by the sented by this appeal, it seems unconsent of all the interested par- necessary to determine it. Appelties, and the "interested parties” lant has under the other rule been (- Ky. -, 268 8. W. 637.) granted all necessary relief. Its de The judgment of the court below cision would be only to settle an ab- is affirmed on both the appeal and stract question of law,
the cross appeal **
Right of creator to revoke or procure cancelation of voluntary trust.
I. Introductory, 941.
a. Generally, 941.
1. In general, 957.
a. Generally, 974.
1. In general, 977.
trust will be set aside, 979.
I. Introductory. It is the purpose of this annotation to consider the right of the creator of a voluntary trust to revoke the same or to procure the cancelation thereof by decree of court.
The discussion includes cases where a voluntary trust is created for the benefit of a third person, and also cases where the trust is for the benefit of the creator, whether with or without remainder over. As thus outlined, it includes those cases where a power to revoke is reserved, as well as those where there is no reservation of such power.
Decisions involving the effect of fraud, undue influence, or mistake, and the effect of the existence of a confidential relationship beween the parties, are also naturally within the scope of this discussion.
The annotation also considers the right of a grantor to revoke a trust deed where the purpose for which it was executed has been accomplished, or where, for some reason, there has been a failure of the trust.
Actions, however, by the executor or administrator of the creator, or by his heirs, to cancel a trust created during the lifetime of the creator, are not considered, except in a few instances where the action was com
3. Cases illustrative of when
trust will not be set aside,
1. In general, 998.
2. Illustrative cases, 999.
2. Illustrative cases, 1012.
g. Miscellaneous, 1027. menced by the grantor in his lifetime and was continued after his death, or where the question of his power to revoke was discussed. Also, the question of the right of a debtor to revoke an assignment made by him in trust for the benefit of his creditors is not treated. And cases involving merely the question of the duration of a trust as determinable by the provisions of the deed of trust, and not involving any question of the right of revocation, have been omitted.
Actions to determine the validity of testamentary trusts are also excluded.
As to the avoidance or reverter of a valid charitable trust, the purpose of which has failed, in the absence of an express provision therefor, see the annotation ante, 44.
II. Right to revoke.
a. Generally. It is a general rule that where a valid and effective voluntary trust has been created, and no power of revocation has been reserved, it cannot be revoked by the creator without the consent of the beneficiaries thereunder.
United States. — Stoehr v. Miller (1923) 296 Fed. 414; Roberts v. Taylor (1924) 300 Fed. 257.
Alabama. Andrews v. Hobson (1853) 23 Ala. 219.