Bank of Kentucky v. Winn

Opinion of the court by JUDGE BURfíAM Affirming. ¡Charles Eginton died a resident of Kenton county, and his last will and testament was duly probated and admitted to record by the courty court thereof' on the 80th day of October, 1890. .He devised to his granddaughter, Sarah L. Eginton, certain real estate and bank stock owned by him at his death, and appointed Joshua N. Winn, her maternal grandfather, trustee thereof, giving him 'power to collect interest, , rents, dividends and profits, and to have the care, 'custody and management thereof for the exclusive benefit and use of his granddaughter during her minority, and longer should she desire. The will further provides that the granddaughter, under certain restrictions, may dispose of this property by will, but that, in event she fails to do so during her life, and dies leaving a child or children, it should belong to them, but. that if, at the time of her death, she left no child or children, and has made no' disposition thereof by will, then.all that remains of the principal and accumulations of the aforesaid estate should be distributed to other designated persons. After the death of her grandfather, Miss Eginton married H. C. Whitehead; and in February, 1899, J. N. Winn, the trustee named* in the will, Mrs. Whitehead, the beneficiary, and her husband, H. C. Whitehead, filed an ex parte petition in the Kenton Circuit [143] Court, in which they ask for a judgment of the court, authorizing the trustee to sell and transfer certain shares of bank stock which was devised' to him as trustee, and held by him in .trust for Mrs. Whitehead under the provisions of the will of her grandfather, Eginton, and to invest the proceeds thereof, with certain other funds in the hands of the trustee, in a tract of 509% acres of land located in Bourbon county, at the price of $47.75 per acre, it being alleged tliai; the tract of land which they desired to buy adjoined another tract owned by her, which contained about 700 acres of land; that the investment would be a safe and judicious one, and for the best interest of the cestui que trust. It having been made to appear to the chancellor that the change in the investment should be made, the court entered a judgment directing a sale of the 70 shares of bank stock held by appellee in the Bank of Kentucky, which is located in Louisville, and an investment of the proceeds thereof in the Bourbon county land. Appellee, under the judgment, sold the bank stock, but appellant, the B'ank of Kentucky, refused to transfer it upon the books of the bank to the purchaser. Thereupon appellee filed his affidavit setting forth this fact, and a rule was awarded him against appellant to show cause why it had refused to transfer on the books of the bank the 70 shares of stock standing in the name of J. N. Winn as trustee. Thereupon appellant entered its appearance, and objected to the jurisdiction of the court, and by way of response said that the petitioner, Winn, held the stock as trustee for Mrs. Winn only during her life, and denied that he had the right to sell or dispose of it; and that the judgment of the chancellor authorizing the sale was not binding upon the contingent beneficiaries, and would not protect the bank against [144] claims that they might thereafter assert against them. Appellant’s response was held insufficient, and an order was entered directing it to make the transfer of the 70 shares of stock upon the order of J. N. Winn, trustee, and from this order of the court this appeal is prosecuted. We think appellant’s apprehension or fear that it might become liable to the persons named as contingent remainder-men by the will is groundless'. Section 4706, Kentucky Statutes, provides: "That it shall be lawful for persons or corporations holding funds in a fiduciary capacity for loan or investment, to invest the same in real estate. . . .” Section 4707 provides: "That all persons holding stocks, bonds or other securities, in a fiduciary capacity for loan or investment, shall have power to sell and transfer same whenever in the judgment of such fiduciary such a sale will benefit the trust estate, and reinvest the proceeds as authorized in section four thousand seven hundred and six of this chapter. ... A purchaser in good faith from such <a fiduciary shall not be bound to look to .the application of .the proceeds of the sale, nor shall a corporation in which such stock held by a fiduciary is 'sold as herein authorized be liable for transferring such stock upon its books upon the order of such fiduciary.” The provisions of the statute 'were enacted for the express purpose of facilitating the transfer of trust funds held in a fiduciary capacity from one investment to another, and to exempt corporations from all liability for transferring shares of its stock so held upon the books of the company, when required to do so by the fiduciary or other proper authority. The only limitation upon this power of transfer and change in the investment is provided <by section 4708 of the statute, which says that [145] “these provisions shall not be construed to permit a sale, investment or loan in conflict with the provisions of the will, deed or other instrument creating the trust, under which the funds or property may be held.” There is no provision of the will of Charles Eginton which either expressly,or by necessary implication forbids a change in the investment of the property devised to his granddaughter. On the contrary, the testator reposed great confidence in the judgment of the trustee, and in his solicitude for the best interest of the cestui que trust, who was also his granddaughter, and conferred upon him as trustee unusual powers over the trust property. Besides,. the provisions of the statutes under which this transfer was directed did not materially change the law as it had always existed. In the well-considered opinion delivered by Judge Pryor in the case of Bank v. Jefferson, 88 Ky., 651, (11 S. W., 767), it was held that trustees charged with the management of trusteed funds for the support and maintenance of the beneficiaries not only had the right, but it was their duty, to make such investments of the funds us would be made by prudent business men with a view to secure to themselves and families a safe income, and that they might change the investments from time to time as they deemed the best interest of the beneficiaries required. In this case no question of the wisdom of the proposed investment is even suggested, and we entertain no doubt of the power of the chancellor to have authorized the change of the investment. The second complaint is that the bank was not before the court until after the judgment was entered, and that upon this account the judgment is void, and not binding upon it. It is also contended that under the ruling of [146] this court in the case of Bank v. Boswell’s Adm’r, 93 Ky., 92, (19 S. W., 174), the Kenton Circuit Court had no. jurisdiction to compel appellant, whose place of business was located in Louisville, to enter its appearance to- a rule issued from the Kenton Circuit Court. All that was decided in the Jefferson case, supra, was that under section 428, Civ. Code Prac., a Louisville bank in which the decedent held -stock was not necessarily a 'party to an action in equity for the settlement of his estate, not being either a representative, legatee, distributee or creditor; and could not be brought before the court in such.a proceeding by the service of process in another county for the purpose of litigating differences with reference to the settlement of the estate. No relief was1 sought in this action against appellant, and it had no beneficial interest in the- stock directed to be transferred. All that has been required of it is that it shall not obstruct the trustee in the performance of his duty to the cestui que trust. In our opinion, neither appellant nor the persons suggested as having a possible interest in remainder were proper parties to this-proceeding. The judgment of the court fully protects the interests of all parties who have or may have any possible interest in ,the property required to be transferred. Judgment affirmed.