
    CASE 65. — ACTION BY THE COMMONWEALTH FOR THE USE OF. THE TAXPAYERS OF NICHOLAS COUNTY AGAINST ARTEMICIA RATLIFF’S EXECUTORS.—
    May 1, 1907.
    Ratliff’s Ex’ors, &c. v. Commonwealth, for Use, of Taxpayers of Nicholas County.
    Appeal from Nicholas Circuit Court.
    From the judgment both parties appeal..
    Affirmed.
    1. Counties — Taxation.—Illegal Collection — Remedies of Taxpayers — Parties.—The fact that persons representing themselves and all other ’taxpayers of the ’county im a suit to enforce a judgment for illegal taxes collected by the sheriff, to 'the amouut of $3,242.79, owned property of the .assessed value of only $1,600, .and that their share of the tax sought to be recovered was only $1.44, would.' not exclude ¡them from the right 'to represent the body of taxpayers.
    2. Wills — Rights and Liabilities of Devisees — Rights ’Of Creditors of Devisee® — Interests Which May Be Subjected. — A testatrix ■devised her property to her children, share land share alike, .subject to provisions made in the will “for the purpose of providing for my husband * * * during his life.” The executors were directed to manage and control the whole estate during the lifetime of the husband, and “use part of the income and of .said estate as may be necessary to provide for and 'comfortably maintain” the husband during his lifetime. Held, that the husband had isuch an interest in the estate as might be .subjected to the payment of his debts.
    3. Trusts — Construction and Operation — Interest of Cestui Que Trust — Liability For Debts. — A beneficial interest in property held in trust may be subjected to the debts «E the cestui que trust although the trust instrument provides that it .shall in no wise be -liable therefor, except in -cases Where a discretionary power is given to the trustee to withhold all payment or -beufici-al use to toe cestui qtte trust.
   Opinion of the Court by

Judge Settle

Affirming.

In the year 1897 the fiscal court of Nicholas county made a levy of 59 cents on each.$100 worth of taxable property in the- county. The levy exceeded by nine cents the constitutional limit, and the excess, amounting in the aggregate to $3,242.79, was illegally collected and appropriated by S. A. Eatliff, then sheriff of Nicholas county, who refused to return the same, or any part thereof, to the taxpayers of the county. In 1902 suit was brought in the Nicholas circuit court by Aris Wiggins, in the name of the Commonwealth-of Kentucky, for his use and that of all other taxpayers of Nicholas county, to recover of S. A. Eatliff and the sureties in his official bond the amount of tax illegally collected by him in 1897. At the May term, 1902, of the Nicholas circuit court, judgment was rendered in that action against Eatliff and his sureties for $3,242.79, the amount sued for. Thereafter on appeal this court reversed the judgment as to the sureties, but affirmed it as to Eatliff. Whaley, etc. v. Commonwealth, for Use, etc., 61 S. W.,35, 110 Ky. 154. Following the return of the case to the lower court execution was issued on tlie judgment against Eatliff, and later returned “No property found.” On October 11, 1906, the present action to enforce the payment of that judgment was instituted in the same court, the names of Aris Wiggins, W. S. Buckler and E. P. Buckler appearing in the petition as plaintiffs, with that of the Commonwealth of Kentucky, represented as suing for their use and that of all other taxpayers in the county. At the first term of the court the name of Aris Wiggins was, on his motion, stricken from the petition, leaving W. S. and E. P. Buckler and all other taxpayers of the county as plaintiffs.

It is alleged in the petition that S. A. Eatliff, for the purpose of defrauding, hindering and delaying his creditors, caused certain real estate, to-wit, a house and lot in the city of Carlisle, and a tract of land in Nicholas county, to be conveyed to his wife, Artemisa Eatliff, and certain other lands to his son, T. J. Eatliff, for which he himself paid the consideration; that these parcels of real estate were held by the wife and son in trust for S. A. Eatliff and should be subjected to the payment of appellees’ judgment. It was further alleged in the petition that Artemisa Eatliff died testate, and the apparent owner of a considerable estate, including the town lot and tract of land referred to; that by the provisions of her will •her sons, Thos. J. and John M. Eatliff, the executors thereof, were directed to'provide their father, S. A. Eatliff, a comfortable support out of the income of her estate; and that so much of the income as would constitute such support should be subjected to the judgment sought to be enforced. To this end the executors were made defendants in the action. Answers were filed by S. A. Eatliff and the executors, which traversed the allegations of the petition, set forth the names of the several children and heirs at law of the testatrix, and defined their interest in the estate. One of them, Gertrude Ratliff, filed a petition in which she asked to be made a party to the action, and averred that by the provisions of her mother’s will, the executors were also directed to furnish her a support from the estate or its income until she becomes 21 years of age, or marries; that her maintenance is a charge upon the estate .and its income, to be provided for before a support is furnished her father; and that it will consume the entire income of the estate to support her. She was made a defendant, her petition taken as an answer, and its affirmative averments controverted by reply.

Reserving for future adjudication the question of whether the several conveyances, or any of them, assailed by the petition were fraudulent as to S. A. Ratliff’s creditors, the lower court entered a decree whereby i-t was adjudged that S. A. Ratliff is entitled under the will of his wife to a comfortable support from the income of her estate, which support, or the value thereof, is liable to the payment of the judgment set out in the petition. That the daughter, Gertrude Ratliff, is also entitled to a support out of the income of the estate until she arrives at the age of 21 years, or marries, and, in the event the income is not sufficient to support both beneficiaries, it shall be equally divided between them; that the parties might take proof as to the sum necessary to comfortably support S. A. Ratliff from year to year; that plaintiffs have a lien on the funds going to S. A. Ratliff for his support to secure the payment of their judgment; finally, that the executors rent out the real estate for the succeeding year, and out of the rents pay insurance and taxes on tlie property, and the cost of necessary repairs, the remainder of rents to be applied one-half to the support of Gertrude Ratliff and the other half (what S. A. Ratliff should receive for his support) as a credit on the judgment in question. Appellants, being dissatisfied with the judgment as a whole, seek its reversal, and appellees appeal from so much thereof as allowed half of the income arising from the renting of the property to be used for the support of Gertrude Ratliff.

Appellants’ first complaint is that the sum to which appellees will be entitled out of the tax sued for is only $1.44, which, it is argued, is so insignificant in amount as to place them below the average of taxpayers of the county, for which reason they are not entitled to sue in their own behalf, or as representatives of the great body of taxpayers of Nicholas county. It fully appears from the record that W. S. or R. P. Buckler, who are husband and wife, listed in the year 1897 for taxation in Nicholas county property of the assessed value of $1,600, which had, in fact, a market value of $3,000. The record furnishes no evidence as to whether or not the average tax list in that county is above $1,600, but, in the absence of evidence on the question, we will not presume that a tax list of $1,600 is below that of the average taxpayer in Nicholas county. The amount to which a large taxpayer would be entitled out of the $3,242.79 sought to be collected in this case would be quite small, so it will not do to say that because appellees’ share of the judgment is only $1.44, that fact of itself excludes them from the right to represent the body of the taxpayers of the county, as well as themselves, in attempting to enforce the collection of the judgment. Applying the rule announced in Sparks, etc., v. Robinson, etc., 74 S. W. 185, 78 S. W. 171, 115 Ky. 461, Ave are not prepared to say that appellees are not fair representatives of the class they profess to act for, or that they have failed to sIioav such an interest as Avould indicate a motive and financial concern in harmony Avitli at least the aAmrage of the body. Moreover, Ave think it is too late to raise the objection noAv urged. It Avas made and overruled In the action in Avhich the judgment was obtained that fixed the liability of appellee S. A. Ratliff, and also the right of appellees and every other taxpayer In the county to share in the judgment.

It is also contended by counsel for appellants that S. A. Ratliff does not OAvn such an interest in the estate devised by the will of his wife as can be subjected to the payment of the judgment against .him. This contention finds no support in the language of the will. That instrument reads as follows: “I, Artemicia Ratliff, of Carlisle, Kentucky, being of sound mind and memory, do hereby make and publish this my last will and testament. 1st. 1 desire that all my just débts including my funeral expenses be paid. 2nd. Subject to the provisions hereinafter set forth, I will and devise to my children, share and share alike, all the property, real, personal and mixed, OAPned by me at the time of my death. This devise to my children shall be subject to the provisions herein made for the purpose of proAtiding for my husband, S. A. Ratliff, during his life. 3rd. It is my will that my executors hereinafter named manage and control all of my estate until the death of my husband, S. A. Ratliff, and such time thereafter as may be necessary or required to wind up and disburse the proceeds realized from the sale of same. It is my will that my executors manage and control my estate during the life time of my husband, S. A. Ratliff, and use part of the income and of said estate as may be necessary to provide for and comfortably maintain the said S. A. Ratliff during his life time; the said executors shall also provide for and maintain out of my estate during her minority or until her marriage our infant daughter, Gertrude, áth. I hereby nominate and appoint my sons, T. W. Ratliff and John Ratliff, executors of this my last will, and authorize and empower them to manage and control my estate as herein provided and as they deem best. Further, I hereby authorize and empower them to sell and by deed convey the real estate or any part thereof owned by me at the time of my death, and to re-invest the proceeds in other real estate subject to the provisions of this will, and empower them as executors aforesaid to sell and convey any and all real estate held 'by my estate at the time of the death of my husband, S. A. Ratliff, and the proceeds of such shall be divided as herein provided in section 2. 5th. In the event one of the executors should fail to qualify as such, or in the event one of them should die during the administration of the trust, or should resign, or for any cause be removed, it is my will that the other executor shall act as such executor of this will, and carry out the provisions of this my will. It is my request that the executors named herein be permitted to qualify as such without being required to execute bond. Witness my hand, this March 19th, 1903. Artemi cia Ratliff. ’ ’ Manifestly, the will makes the sup-¡ port of S. A. Ratliff a charge against and a burden! upon, not only the income of the estate devised^ but also the corpus of the estate. There can be no distribution of the estate among the children of the testatrix while he lives, for the language of the will is: “It is my will that my executors manage and control my estate during the life of my husband, S. A. Ratliff, and use such part of the income and of the estate as may be necessary to provide for and comfortably maintain the said S. A. Ratliff during his life.” There is but one limitation upon the enjoyment of the income of the estate for his comfortable support, and that is the right of his daughter, Gertrude, to share it with him until she becomes 21 years of age, or marries. The executors must obey the provisions of the will with respect to Gertrude by dividing between her and her father the income of the estate, if not sufficient to fully provide a support for each of them, until she becomes 21 years of age, or sooner marries, but in other respects the will deprives them of all power or discretion to withhold from S. A. Ratliff the income of the estate. Indeed, they can be made to apply the body of the estate to his comfortable support, if its income should' become insufficient for that purpose. There can be no doubt of S. A,. Ratliff’s having such an interest in the estate devised as may be subjected to the payment of his debts. Section 2355, Ky. St., provides: “Estates of every kind held or possessed in trust, shall be subject to the debts and charges of the persons to whose use, or for whose benefit, they shall be respectively held or possessed, as they would be subject if those persons owned the like interest in-the property held or possessed as they own .or shall own in the use or trust thereof.” It has been repeatedly held by this court that a beneficial interest, such as is here provided for appellee, S. A. Ratliff, by the will of his wife, may be subjected to the debts of the beneficiary, although the testator or grantor provides that it shall in no wise be liable therefor. Parsons v. Spencer, 83 Ky. 310; Woolley v. Preston 82 Ky. 415; Bull v. Kentucky National Bank, 90 Ky. 452, 14 S. W. 425, 12 L. R. A. 37. The only instances in which this court has refused to subject property held in trust to the payment of the debts of the cestui que trust have been cases in which a discretionary, power is given to the trustee to withhold all payments or beneficial 'use to the cestui que trust. Marshall’s Trustee v. Rash, 87 Ky. 116, 7 S. W. 879, 12 Am. St. Rep. 467; Bland’s Adm’r v. Bland, etc., 90 Ky. 400, 14 S. W. 423, 9 L. R. A. 599, 29 Am. St. Rep, 390; Samuel v. Salter, 3 Metc. (Ky.) 259.

We fully concur in the conclusion reached by the lower court. Consequently the judgment is affirmed on both the original and cross-appeal.  