Request By:
Mrs. Tommie C. Bach
Fayette County Clerk
Fayette County Courthouse
Room 406
Lexington, Kentucky 40507
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
As Deputy Clerk of the Fayette County Court you are in charge of the Robert Henry Hughes Scholarship Fund for around 20 years as a part of your duties under the county judge. County judge Paul Gudgel has requested you to request an opinion from this office as to whether the scholarship program should be turned over to the county judge/executive in January, 1978, or to one of the district judges.
The extract from the will of Robert H. Hughes (Third provision) purports to create a trust, in connection with the "residue of my estate", to be held by the Security Trust Company of Lexington, directing that the net income thereon be used in perpetuity for the education of deserving persons of Fayette County, Kentucky, one-half for white persons and the other half for black persons, to be selected from time to time by those persons, who are at the time Judge of the Fayette Circuit Court, Judge of the Fayette County Court and the principal of the Dunbar High School etc. The officials so named are required to designate such recipients of the scholarship fund on or before July 1 of each year for the school year next following July 1 of each year. Thus the committee of officials designates the recipients of income on said trust fund, the specific amount to be paid each recipient, and shall certify this to the trustee for payment.
It is our opinion that, considering the committee includes the constitutional office of county judge and considering that the committee acts in an administrative capacity rather than a judicial one, the county judge/executive taking office on January 2, 1978, properly belongs on the committee under the express terms of the trust instrument. If the committee function involved a judicial function, then the county judge/executive in 1978 could not perform such role, since the county judge's judicial function ends as of January 2, 1978, under the Judicial Amendment of the Constitution. In KRS 67.700 et seq., the county judge/executive has been assigned purely executive and administrative duties. But there is no problem here, since the committee's function is purely of an administrative or business character under the trust instrument. Thus the county judge/executive in 1978 and thereafter may continue to properly serve on the committee in administering the trust. Here the settlor is merely using public officials to carry out a private trust. The committee is an adjunct to the trustee for the purpose of distributing the scholarship money. The trustees power and discretion are limited with respect to the purposes and beneficiaries of the trust.