Walker v. Doak

TYLEB, J.,

pro te

m.

This action was brought by plaintiff, a creditor of a beneficiary under a certain trust, to recover the sum of $5,000, said amount being the entire interest which such beneficiary had under the trust. The action is against Bert G. Doak and Fred M. Doak, individually and as trustees, and Bobert J. Finnic, upon alleged rights created

[32]

by virtue of certain attachment and garnishment proceedings issued upon a judgment against the beneficiary, one Claude K. Doak. The other defendants were joined as parties for the alleged reason that they claimed an interest in the fund. Defendant Sullivan claimed the money by virtue of an attachment levied thereon. The Hotel Plaza Company made claim thereto by virtue of an assignment. The Bank of Italy was a mere stakeholder and was interested only in a nominal charge for escrow fees which were allowed by the court. Mrs. C. W. Finigan claimed a portion of the fund under an assignment. The defendant trustees claimed that they had, prior to the levy, paid Claude K. Doak, the debtor, as beneficiary, a- portion of the sum amounting to $3,000; that the balance of $2,000 was covered by an assignment executed by Claude K.. Doak.

The trial court found that plaintiff was not entitled to a judgment against any of the defendants. The findings were against Sullivan and the hotel company and they have not appealed. Plaintiff appeals and urges several reasons why the judgment should be reversed. The facts giving rise to the controversy show that on March 30, 1922, one Sarah M. Doak executed a trust conveyance to her sons Fred M. Doak and Bert G. Doak, whereby there was conveyed in trust certain real and personal property for definite purposes including her future support. The trustees were given full power to manage and control the property and the trust conveyance provided, among other things, that upon a sale of the real property there should be paid the sum of $5,000 to each of her five sons, among whom was Claude K. Doak, and it is his interest in the trust estate that forms the subject of this controversy. Included in the property in the hands of the trustees were certain reclamation bonds. The record does not show the source from which these bonds were derived, and there is nothing to indicate that they were a part of the trust fund. The trustees delivered to each of the five sons of the trustor three of these bonds of the value of $1,000 each as an advancement upon the $5,000 that each was to receive under the terms of the trust when the real property was sold. Upon receiving his bonds Claude K. Doak executed a receipt to the trustees for the same. This document recited that the bonds were delivered as part payment of the $5,000 which Doak was to