Gaither's Guardian v. Gaither , 213 Ky. 330 ( 1926 )

Opinion of the Court by

Commissioner Hobson

Affirming.

In May, 1923, Mrs. Ida B. Gaither died testate in Mercer county, the owner of a house and lot in Harrods-burg in which she resided. By her will, which was duly admitted to probate, she disposed of it as follows:

“My home -on Moreland avenue I desire my three sons to share equally and proceeds therefrom to be used as far as they will go for the education of their children.”

On March 28, 1925, the devisees sold the house by executory contract to Howard Forsythe for $6,550.00. There being doubt in the mind of the purchaser as to whether the deed they tendered him passed a good title this action was filed by the three sons, their wives, their children and the purchaser to obtain the judgment of the court as to the title. Each of the sons had children, all of them being infants. The infants joined in the petition by their next friend. The court required the petition to be reformed so as to make all the adult plaintiffs defendants to the action, leaving the infant plaintiffs by their next friend as the sole plaintiffs. A guardian ad litem was appointed who filed his report, alleging that by the will a trust was created by which the fathers of the infant children became their trustees for the specific purpose of applying the proceeds derived from the property for their education. He prayed the court to so construe the will and that the interest of the infants be protected by proper orders. One of the sons was a lawyer living in New York City; the second was a civil engineer living in Topeka, Kansas; the third was a resident of Mexico City, Mexico; all of them were successful business men. On final hearing the circuit court entered a judgment that the testator intended that the proceeds arising from the sale of the property should be used by them in the education of their children, but that the three sons are the owners in fee of the property, with power to sell and convey, and that the purchaser is under no obligation to look to the use of the proceeds. Prom this judgment the guardian ad litem appeals.

As by the terms of the will the three sons are to share the property equally and the proceeds therefrom to be used as far as they will go for the education of their children the will clearly gives the three sons the power to sell and convey the property, for otherwise the proceeds therefrom could not be used for the education of their children. The devise as to the use of the proceeds by necessary implication carries with it the power to sell and convey,

There is nothing precatory in this devise. The sons are not requested to apply the proceeds to the education of their children. By the terms of the will the proceeds therefrom are to be used as far as they will go for the education of their children. The sons are thus made the trustees of an express trust; each takes one-third of the proceeds and each holds the fund he so takes as a trust' fund for the education of his children. He is, as to this fund, the trustee of an express trust. He is not at liberty to use the fund or its accumulations for any other purpose under present conditions.

It is earnestly insisted that this being true, the circuit court erred in not requiring each of the trustees to execute a bond for the faithful performance of the trust. In 39 Cyc., p. 254, the general rule on the subject is thus stated:

“In a proper case, the court may, by virtue of its inherent chancery jurisdiction over trust estates, require the execution of a bond for the faithful administration of the trust. It is optional with the creator of the trust to require a bond or not, and a trustee should not be called on for security when the creator of the trust required none of him and no probability of loss is shown.”

No fact appears that was unknown to the testatrix when she made her will; she knew where each of her sons resided; she knew the business qualifications of each of them. When she created the trust, having all the facts before her, she did not require a bond of any of them. No probability of loss is shown. The circuit court in the exercise of his discretion did not deem it proper to require the trustees to give bond and we cannot say that in so doing he abused his discretion. While infants are peculiarly under the protection of the chancellor and he will when necessary for the protection of their interest require a trustee for them to execute bond, the matter always rests in his sound discretion and his conclusion will not be disturbed unless the discretion is abused.

Judgment affirmed. Whole court sitting.