Elwell v. Stewart

• Decision Date: 07 January 1922
• Docket Number: 23,386
• Citation: 110 Kan. 218,203 P. 922
• Parties: DERINDA ELWELL, Appellee, v. CLYDE STEWART, as Executor of the Estate of HETTIE H. CULP, Deceased, Appellant
• Court: Kansas Supreme Court

203 P. 922

110 Kan. 218

DERINDA ELWELL, Appellee, v. CLYDE STEWART, as Executor of the Estate of HETTIE H. CULP, Deceased, Appellant

No. 23,386

Supreme Court of Kansas

January 7, 1922

Decided January, 1922

Appeal from Douglas district court; CHARLES A. SMART, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

WILL--Bequest in Trust--Interpretation of Will--Beneficiary Entitled to Net Income of Property. Under a will giving the testatrix's property to a trustee for the use and benefit of her mother during her life and directing the trustee to sell so much of it as he might deem necessary for her care and maintenance the mother is to receive the whole of the net income of the property, although it is more than sufficient for her support.

Edward T. Riling, John J. Riling, both of Lawrence, and S.D. Scott, of Olathe, for the appellant.

J. W. Parker, and G. A. Roberds, both of Olathe, for the appellee.

OPINION

MASON, J.:

Hettie H. Culp died testate leaving all her property to Clyde Stewart, the executor, in trust for the use of her mother, Derinda Elwell, during her life, any of the property remaining in his hands at her death to go to his two daughters. Mrs. Elwell brings this action for the construction of the will for the purpose of determining whether she is entitled to all the net income of the estate or only to so much as is necessary for her support. The trial court adopted the former interpretation and the executor appeals.

The only paragraph of the will requiring consideration reads as follows:

"I give, devise and bequeath to Clyde Stewart, of Baldwin City, Kansas, all of my property, real, personal and mixed, whatsoever and wheresoever located, and all property or interest in property or estate to which I may be entitled, in trust however for the use and benefit of my mother, Derinda Elwell, during her natural life, and I do hereby direct my said trustee to sell and dispose of any or all of such said property as he may deem necessary for the care and maintenance of my said mother, in the event that the income from my said estate shall not be sufficient for such purpose. Upon the death of my mother in the event that any property should remain in the hands of my said trustee undisposed of by him, I give, devise and bequeath all of said property or estate to Beulah Helen Stewart and Ethelyn Blondell Stewart the daughters of said Clyde Stewart, as their sole and separate property, share and share alike."

In support of the theory of the executor it is argued that a consideration of the entire paragraph reveals the testatrix' purpose to have been to provide for her mother's care and maintenance, the trustee to determine what and how much was necessary to that end. We cannot agree to this conclusion. As we...