or largely," was stolen from plaintiff in proving that they were used to pay and so used, were subject to special demurrer. Ibid. Where it is claimed by a person that funds of his have been used by another in paying premiums for insurance on the latter's life, the burden is on the one asserting such a claim to prove that his funds were so used. Bromley v. Cleveland, C. C. & St. L. R. Co. (1899) 103 Wis. 562, 79 N. W. 141. It has, however, been held that it is not necessary to prove the wrongful appropriation, or the tracing of the funds beyond a reasonable doubt, or, the premiums, to show that the identical bills or specie abstracted were so employed. TRUELSCH V. NORTHWESTERN MUT. L. INS. Co. (reported herewith) ante, 914. It may be noted in this connection that the giving of notes and duebills to the agent of the insurance company for the premiums has been held not to negative a claim that the premiums were paid by moneys embezzled. See the reported case (TRUELSCH V. NORTHWESTERN MUT. L. INS. Co. ante, H. C. J. 914). FIDELITY & COLUMBIA TRUST COMPANY, Trustee, etc., 1. One placing his property in trust for his own benefit because he is subject to epileptic attacks may have the trust canceled when he is restored to health. [See note on this question beginning on page 941.] Trusts, § 53 cancelation tion of purpose. - cessa 2. The cancelation of a trust created to protect the cestui que trust from the consequences of ill health, unfortunate habits, or improvidence will be decreed when the cause for its creation no longer exists. [See 26 R. C. L. 1210. See also note in 2 A.L.R. 579.] Evidence, § 729 parol to show 3. Parol testimony is admissible to establish the purpose for which property was placed in trust where the settlor is living and is the sole beneficiary of the trust. [See 26 R. C. L. 1201, 1203.] CROSS APPEALS from a judgment of the Chancery Branch, Second Division, of the Circuit Court for Jefferson County in favor of plaintiff in an action brought to cancel a trust; defendant appealing from so much of the judgment as entitled plaintiff to a cancelation, and granted consequential relief; and plaintiff appealing from so much as denied him the right, at his election, at any time to revoke, alter, or modify the trust agreement. Affirmed on both appeals. The facts are stated in the Commissioner's opinion. It would seem that a trust of the kind in question can be revoked in Kentucky only when an express power of revocation is contained in the trust agreement. Coleman v. Fidelity Trust & S. V. Co. 28 Ky. L. Rep. 1263, 91 S. W. 716; Middleton v. Shelby County Trust Co. 21 Ky. L. Rep. 183, 51 S. W. 156; Anderson v. Kemper, 116 Ky. 339, 76 S. W. 122; Downs v. Security Trust Co. 175 Ky. 789, 194 S. W. 1041. Mr. Thomas J. Wood, for plaintiff: When the causes which led to the creation of a trust have ceased to exist, and the purposes for which it was created have been accomplished, the trust should be terminated. Perry, Tr. & Trustees, § 920; 26 R. C. L. p. 1210; Weakley v. Buckner, 91 Ky. 457, 16 S. W. 130; Downs v. Security Trust Co. 175 Ky. 789, 194 S. W. 1041; Avery v. Avery, 90 Ky. 613, 14 S. W. 593. A cestui may be said to be the sole beneficiary of a trust under the terms of which the income is to be paid to him for life, and upon his death the trust is to cease and the property held thereunder to pass according to his will, or, should he die intestate, to his heirs, as determined by the laws of the state. Nuckols v. Davis, 188 Ky. 215, 221 S. W. 507; Mayes v. Kuykendall, Ky. 112 S. W. 673; Pryor v. Castleman, 9 Ky. L. Rep. 967, 7 S. W. 892; Stephens v. Moore, 298 Mo. 215, 249 S. W. 601; Burton v. Boren, 308 Ill. 440, 139 N. E. 868. Where property is conveyed to a trustee purely for the benefit and convenience of the settlor, who is, under the terms of the trust agreement, the sole beneficiary, he should have the power to annul or modify the trust whenever he may see fit. Frederick's Appeal, 52 Pa. 338, 91 Am. Dec. 159; Russell's Appeal, 75 Pa. 269; Rick's Appeal, 105 Pa. 528; Ewing v. Wilson, 132 Ind. 223, 19 L.R.A. 767, 31 N. E. 64; Aylsworth v. Whitcomb, 12 R. I. 298; Avery v. Avery, supra; Brannin v. Sherley, 91 Ky. 450, 16 S. W. 94; Middleton v. Shelby County Trust Co. 21 Ky. L. Rep. 183, 51 S. W. 156; Anderson v. Kemper, 116 Ky. 339, 76 S. W. 122; Coleman v. Fidelity Trust & S. V. Co. 28 Ky. L. Rep. 1263, 91 S. W. 716; Beard v. Beard, 173 Ky. 131, 190 S. W. 703, Ann. Cas. 1918C, 832; Downs v. Security Trust Co. 175 Ky. 789, 194 S. W. 1041; Schriver v. Frommel, 179 Ky. 228, 200 S. W. 327; Burton v. Burton, 198 Ky. 429, 248 S. W. 1031; Perry, Tr. & Trustees, § 104, p. 132; 26 R. C. L. p. 1211. Sandidge, C., filed the following opinion: On November 14, 1921, appellee, Joseph K. Gwynn, delivered to appellant, Fidelity & Columbia Trust Company, as trustee, $24,000 in cash to be held by it under the terms of a trust agreement which empowered the trustee to manage and invest the money, and required it to pay him the net income therefrom in monthly instalments during his life. The trust agreement contained this further provision: "Upon the death of the party of the first part, this trust shall cease and the principal of the trust estate shall pass in accordance with the last will of the party of the first part. Should the party of the first part fail to exercise said right of testamentary disposition, the principal of the trust estate shall pass unto the heirs of the party of the first part as determined by the laws of the state of Kentucky then in force." It did not reserve to the settlor the right or power of revocation or by its terms assign any reason for the creation of the trust. By this proceeding, had by virtue of and pursuant to the provisions of the declaratory judg ment law, a cancelation of the trust is sought by appellee upon the ground that the execution of the trust agreement was procured by undue influence; that the purpose for which the trust was created has been accomplished; and that he, the settlor of the trust, having voluntarily created it for his own benefit, no one else being interested, has the right to have the same canceled at any time. The chancellor adjudged a cancelation of the trust, upon the ground that the purpose for which it was created no longer exists, and that therefore the trust should be canceled; but adjudged that the trust agreement was not procured by undue influence, and that the settlor of a trust who is also its sole beneficiary cannot have it canceled at any time upon his application. An appeal by the trustee and a cross appeal by the settlor and cestui que trust have been prosecuted from that judgment, presenting to us three questions: (1) Was the execution of the trust agreement procured by undue influence? (2) Did the chancellor properly adjudge that (— Ky. - spendthrifts and those possessed of That the execution of the trust agreement was procured by undue influence is not urged for appellee on his cross appeal, and we will consider that question as being waived. The chancellor's judgment as to it is undoubtedly correct. Appellant insists that the chancellor erroneously adjudged that the purpose for which the trust was created has been accomplished, and that therefore it should be canceled. The principle of law that the parties interested may have a trust canceled when the purposes for which it was created have been accomplished seems everywhere to be recognized. Perhaps the principle has been given a wider application than was contemplated when it was first established. The principle seems originally to have been enunciated in cases where property was deeded to a trustee as security for the debts of the settlor of the trust, and upon the payment of the debts, the purpose for which it had been created having been accomplished, reason no longer existed for its continuance. Consequently, it was held that the settlor of the trust was entitled to its cancelation and a reconveyance of the property embraced in the trust. Other kindred situations calling the principle into use might be cited. The field covered by the principle has been gradually broadened until now it seems to be recognized, under certain circumstances, as broad enough to cover spendthrift trusts and such trusts as unfortunate habits and ill health upon the part of the cestui que trust have caused to be created. A number of cases in Kentucky have recognized the principle as applying to trusts created for the protection of conse- cancelation quence of ill health, cessation of unfortunate habits, purpose. or improvidence, when the cause no longer exists the reason for the trust ceases, and its cancelation will be decreed. See Avery v. Avery, 90 Ky. 613, 14 S. W. 593; Middleton v. Shelby County Trust Co. 21 Ky. L. Rep. 183, 51 S. W. 156; Anderson v. Kemper, 116 Ky. 339, 76 S. W. 122; Downs v. Security Trust Co. 175 Ky. 789, 194 S. W. 1041. Applying that principle to the facts of this case, we find that the trust agreement itself does not disclose what motive prompted appellee to deliver his estate to appellant to hold in trust for him. It is agreed by the parties, however, that he was prompted to do so because for a number of years he had been subject to attacks of epilepsy, the frequency and severity of which seem to have increased as time passed by, until, as a result of his ailment, appellee was unable to engage in business, his physical condition became greatly impaired, and his soundness of mind was seriously threatened. It is agreed that appellee was thereby moved to deliver his estate to appellant as his trustee, and to execute the trust agreement in question. It appears from the record herein that for a period of three years prior to the institution of this proceeding appellee has not had an attack of epilepsy; that for more than two years he has been actively engaged in business for himself; and that he now apparently is completely restored in health. Under these facts, the chancellor adjudged that, the reason for which the trust was created no longer existing, and no one being interested save appellee, who is both the settlor and the cestui que trust, he is entitled to its cancelation. It is obvious from the The admission of parol testimony in this case, to establish the purpose for which this trust was created, is not in conflict with the rule laid down in Carpenter v. Carpenter (Carpenter v. Sturgeon) 119 Ky. 582, 68 L.R.A. 637, 115 Am. St. Rep. 275, 84 S. W. 737, that parol evidence cannot be introduced to show the settlor's motive, where it was not expressed in the trust paper. In that case the trust was created by will; the settlor parol-to show of the trust was dead. Here the settlor of the trust is living, and he also is the sole cestui que trust. Evidence purpose of trust. It is insisted by appellee on cross appeal that since he is both the settlor and the cestui que trust, and no other beneficial interest or estate in the property placed in trust was created by the trust agreement, he has the right at any time to have the trust canceled and annulled. The trust agreement provided that the trust should terminate upon the death of the appellee. The provision for the disposition of the trust estate upon his death, quoted above, clearly does not create any further beneficial interest or estate in the trust property. Appellee alone by the trust agreement was granted a beneficial interest in the trust estate. Consequently, the only person in interest, so far as this trust agreement is concerned, seems to be appellee, Joseph K. Gwynn, since he is both the settlor and cestui que trust. There seems to be a generally recognized principle that a trust may be revoked at any time by the consent of all the interested parties, and the "interested parties" seem to have been held to be the settlor and cestuis que trustent. It seems never to have been regarded as necessary to procure the consent of the trustee. It is said in Perry on Trusts, § 920: "A trust will not be continued merely that the trustee may continue to receive compensation from it. If the cestuis desire its termination it will not be maintained for the benefit of the trustee." It would seem logically to follow that where the settlor of the trust voluntarily places his estate in trust for his benefit alone, making himself the sole cestui que trust, regardless of the reason for his so doing, or whether the reason continues to exist or not, he should at any time have the right to demand its cancelation. However, that right does not seem heretofore to have been recognized by this court, for, in Middleton v. Shelby County Trust Co. 21 Ky. L. Rep. 183, 51 S. W. 156, Coleman v. Fidelity Trust & S. V. Co. 28 Ky. L. Rep. 1263, 91 S. W. 716, and Downs v. Security Trust Co. supra, the right of the settlor, who also was the cestui que trust, to cancel the trust, was denied in cases where he alone took an interest under the trust agreement. Regardless of the general rule above, the court in those cases seems to have been actuated by the particular facts presented. The question being presented to a court of equity under particular facts that made it manifest that the best interest of the beneficiary demanded that the trust remain in force, in each of those cases the court declined to cancel the trust. In the Coleman Case, 28 Ky. L. Rep. 1263, 91 S. W. 716, the question was squarely presented, because there the settlor and sole cestui que trust were one and the same, and he contended that he had the right for that reason to annul the trust at any time. The right was denied. However, as the question is presented by this appeal, it seems unnecessary to determine it. Appellant has under the other rule been (Ky. -} 268 S. W. 537.) granted all necessary relief. Its decision would be only to settle an abstract question of law. The judgment of the court below is affirmed on both the appeal and the cross appeal. ANNOTATION. Right of creator to revoke or procure cancelation of voluntary trust. I. Introductory, 941. II. Right to revoke: a. Generally, 941. b. Illustrative cases, 948. c. Reservation of power to revoke: 1. In general, 957. 2. Exercise of reserved power, 961. d. Revocation by consent, 965. III. Cancelation by court: a. Generally, 974. b. Fraud or undue influence: 1. In general, 977. 2. Cases illustrative of when trust will be set aside, 979. 1. Introductory. It is the purpose of this annotation to consider the right of the creator of a voluntary trust to revoke the same or to procure the cancelation thereof by decree of court. cases The discussion includes where a voluntary trust is created for the benefit of a third person, and also cases where the trust is for the benefit of the creator, whether with or without remainder over. As thus outlined, it includes those cases where a power to revoke is reserved, as well as those where there is no reservation of such power. Decisions involving the effect of fraud, undue influence, or mistake, and the effect of the existence of a confidential relationship beween the parties, are also naturally within the scope of this discussion. The annotation also considers the right of a grantor to revoke a trust deed where the purpose for which it was executed has been accomplished, or where, for some reason, there has been a failure of the trust. Actions, however, by the executor or administrator of the creator, or by his heirs, to cancel a trust created during the lifetime of the creator, are not considered, except in a few instances where the action was com III. b-continued. 3. Cases illustrative of when trust will not be set aside, 985. c. Duress or coercion, 995. d. Mistake or misunderstanding: 1. In general, 998. 2. Illustrative cases, 999. e. Effect of existence of confidential relationship: 1. In general, 1010. 2. Illustrative cases, 1012. 1. Accomplshment purpose, 1021. g. Miscellaneous, 1027. menced by the grantor in his lifetime and was continued after his death, or where the question of his power to revoke was discussed. Also, the question of the right of a debtor to revoke an assignment made by him in trust for the benefit of his creditors is not treated. And cases involving merely the question of the duration of a trust as determinable by the provisions of the deed of trust, and not involving any question of the right of revocation, have been omitted. Actions to determine the validity of testamentary trusts are also excluded. As to the avoidance or reverter of a valid charitable trust, the purpose of which has failed, in the absence of an express provision therefor, see the annotation ante, 44. |