Hamilton v. Ferrall

DRAPEAU, J.

Demurrer to plaintiff’s complaint was sustained without leave to amend, and judgment followed. Therefore, a somewhat detailed statement of the allegations of the complaint is necessary.

The complaint alleges:

1. That the plaintiff, Faye F. Hamilton, appears by guardian

ad

litem; that the plaintiff and the defendant George D. Ferrall are sister and brother, and that their father died in 1940, leaving a last will and testament. By this will the defendant brother was nominated coexecutor with another person, the brother to serve without bond.

2. After payment of specific bequests, the will directed one-half of the residue of the estate to go to the brother, or to his children if he died before the testator; and the remaining one-half of the residue to go to the said brother and a bank named in the will, as testamentary trustees for the use and benefit of plaintiff daughter. After giving the trustees powers to carry on the trust estate, and to compensate themselves, the trust provides:

(a) That the plaintiff be paid the income of the trust, and if such income be insufficient to meet her needs, at the discretion of the trustees, corpus of the trust estate be used for that purpose.

(b) That the trust terminate and the corpus thereof go to the daughter “upon the death of Alex C. Hamilton, or his divorce from my said daughter. ...”

Alex C. Hamilton is the husband of plaintiff, with whom she lived for about 34 years as man and wife, with no dissension between them, and no suggestion or discussion of their separation.

(c) This contingency failing, it was directed that upon the death of plaintiff the trust should terminate ■ and the corpus

[279]

thereof go to the defendant brother and his three children.

3. The complaint further alleges that at the time of the execution of the will plaintiff was suffering from illness which necessitated her placement in a sanitarium, where she remained until the filing of the complaint; that she was of unsound mind, incapable of caring for her property or understanding the nature or effect of her acts, prior to and since the entry of the decree of distribution which carried out the terms of the will and established the testamentary trust.