
    Huntington National Bank, Trustee, Appellee, v. Aladdin Crippled Children’s Hospital Assn., Inc., Appellant, et al., Appellees.
    (No. 5831
    Decided March 17, 1959.)
    
      Mr. Roger F. Day, for plaintiff appellee.
    
      Mr. John H. Summers, for appellant Aladdin Crippled Children’s Hospital Assn., Inc.
    
      Mr. Benjamin L. Clark, for appellees Chester H. Cook and Dorothy D. King.
    
      Mr. Mark McElroy, attorney general, for the state of Ohio.
   Per Curiam.

This cause comes to this court on an appeal on questions of law and fact from a judgment entered by the Court of Common Pleas of Franklin County after trial of the issues on the merits. The cause is one for a declaratory judgment brought by the plaintiff seeking construction of a testamentary trust established by the will of Chester C. Cook, deceased. Such trust instrument appointed the plaintiff trustee of the assets of the estate to be administered for the benefit of decedent’s son, Chester H. Cook, and a foster daughter, Dorothy D. King, each to share equally in the benefits.

The cause was presented to this court on stipulations of fact filed with the papers in the case, which include a transcript of the proceedings in the Court of Common Pleas of Franklin County. The trustee, following out the provisions of the trust agreement, divided the assets therein equally between the beneficiaries, the total assets being $84,792.09.

Since the death of Chester C. Cook on September 6, 1951, his son, Chester H. Cook, has become totally incapacitated and was compelled to leave his employment in 1953 and is now residing in Florida. His total disability is clearly established by the evidence. His income from pensions, insurance funds and this trust totals a little more than $400 a month, which he finds inadequate for his support, and that of his family, in the station in life to which he has become accustomed.

The trustee thereupon applied the income from his share of the trust fund and some part of the principal to provide what it determined to be necessary for his adequate support.

The defendant Aladdin Crippled Children’s Hospital Association, Inc., as the residuary beneficiary of the trust, questions the trustee’s right to make such determination and that circumstances exist to justify the use of the principal for the support of Chester H. Cook.

The provisions of the will creating the trust and the powers of the trustee, provided for in item IV, bequeathed and devised the estate in trust and directed the trustee to divide the fund into two equal parts, one part for the benefit of the son, Chester H. Cook, and one part for the benefit of Dorothy King, a foster daughter.

The will then provided in item IV, in part, as follows:

“H. From the net income of that part of the trust fund held for the benefit of my son, Chester H. Cook, there shall be paid to him by the trustee during his lifetime such amounts in monthly installments as will, when added to the income from certain policies of insurance on my life, the proceeds of which are payable directly to Chester H. Cook, provide a total monthly income of two hundred dollars ($200.00).

i 6 # # #

“J. In the event of illness or incapacity of either Chester H. Cook or Dorothy D. King, I hereby authorize my trustee in its uncontrolled discretion to consume so much of the income or principal of that part of the trust estate held for the benefit of Chester H. Cook or Dorothy D. King as may be necessary to pay any expenses resulting from such illness or incapacity.

“K. Upon the death of Chester H. Cook or Dorothy D. King and in addition to the authority conferred on my trustee by paragraph (J) above, I hereby authorize my trustee in its uncontrolled discretion to consume so much of the income or principal of that part of the trust estate held for the benefit of such deceased person as may be necessary to pay any expenses resulting from the illness or incapacity of the survivor.

“L. Upon the decease of my son, Chester H. Cook, and Dorothy D. King, the trust shall terminate and the principal of the trust then remaining and any accumulated income shall be paid over to the Aladdin Crippled Children’s Hospital Association, Inc., Columbus, Ohio, absolutely and in fee simple.”

Until his unfortunate illness in 1952, from the results of which he became totally incapacitated, Chester H. Cook was accustomed to a substantial income as President of the Sunday Creek Coal Company, having succeeded his father in that office. Prom the record, he used almost all his income in the support of himself and family. The will indicated that the testator did not want his son to benefit to any great extent from his estate unless illness or incapacity required it. The decision as to whether and when illness or incapacity should befall Chester H. Cook, and how much is to be used beyond that directed to be paid monthly in any such event was left entirely to the trustee.

We agree with the holding of the Court of Common Pleas that the testator intended his son to have the right to receive all the income and portions of the principal, when necessary in the judgment of the trustee, to sustain him and his family in a reasonable fashion in the event illness or incapacity should befall him. The judge of the circumstances which would warrant the exercise of this power and the amount necessary to pay any expense resulting from illness or incapacity is the trustee in the exercise of its sound discretion.

We, therefore, render judgment the same as that entered in the Court of Common Pleas and for the reasons generally stated by that court in its opinion filed in the case.

Judgment accordingly.

Hurd, P. J., Skeel and Duffy, JJ., concur.

Hurd, P. J., and Skeel, J., of the Eighth Appellate District, sitting by designation in the Tenth Appellate District.  