In re Nichols' Trust Fund

• Decision Date: 19 February 1934
• Parties: IN RE MARGARET SPENCER NICHOLS TRUST FUND, J. W. RATEKIN, TRUSTEE, MARGARET MIDDLEKOFF LOVEGREEN, BENEFICIARY, APPELLANT, v. JAMES STANLEY NICHOLS ET AL., RESPONDENTS
• Court: Kansas Court of Appeals

68 S.W.2d 917

228 Mo.App. 489

IN RE MARGARET SPENCER NICHOLS TRUST FUND, J. W. RATEKIN, TRUSTEE, MARGARET MIDDLEKOFF LOVEGREEN, BENEFICIARY, APPELLANT, v. JAMES STANLEY NICHOLS ET AL., RESPONDENTS

Court of Appeals of Missouri, Kansas City

February 19, 1934

Appeal from Circuit Court of Callaway County.--Hon. North Todd Gentry, Judge.

REVERSED AND REMANDED (with directions).

Reversed and remanded.

Baker & Baker for respondents.

John L Plowman for appellant.

CAMPBELL C. Reynolds, C., concurs.

OPINION

CAMPBELL, C.--

The will of Margaret Spencer Nichols, deceased, was proven and admitted to probate in Callaway County on December 31, 1920. Item or clause 3 of the will follows:

"And lastly, all the rest, residue and remainder of my estate whatsoever, real, personal and mixed, and wherever situated, I give, devise and bequeath to J. W. Ratekin, as Trustee, to have and to hold the same for my son, Noah Harry Nichols, for his natural like and I hereby direct that the said J. W. Ratekin, as trustee, shall have the right to convert to cash any of my real estate. I further direct that should the income from my estate be insufficient to support and maintain my son, Noah Harry Nichols, that the said J. W. Ratekin is authorized to use for the support of the said Noah Harry Nichols, one-half the value of my estate at my death or any part of said one-half. And at the death of the said Noah Harry Nichols, my estate is to be divided one-half of the value of my estate at the time of my death to my granddaughter, Margaret Lovegreen, to have and to hold, to her and her heirs forever. To my grandson, James Stanley Nichols, and my granddaughter, Gladys Long Banta, to have and to hold to them and their heirs forever, the other one-half of my estate which may be left at the death of my son, Noah Harry Nichols, or such part of said one-half as has not been expended for the support of my son, Noah Harry Nichols."

The estate of decedent was administered and final settlement thereof made in May, 1922, at which time the property in the estate of the estimated value of $ 8157.58 was delivered to J. W. Ratekin, the trustee named in the will.

Noah Harry Nichols, son of testatrix, died February 22, 1932. Thereafter, said trustee presented to the Circuit Court of Callaway County his petition, stating therein the manner in which he had performed the trust, the amounts received and disbursed, and prayed the court to approve his report and adjudge the respective rights and interests of the parties to this proceeding in the trust property.

The beneficiaries, James Stanley Nichols and Gladys Long Banta, filed their joint answer. Margaret Lovegreen filed separate answer. Neither answer has been assailed. The cause was tried and resulted in a decree which surcharged the accounts of the trustee and adjudged that the costs of administration "be deducted from the body of the estate and not from the income," and in effect charged against the interest of Margaret Lovegreen a part of the amount of the principal of the estate which the trustee had expended in supporting and maintaining Noah Harry Nichols. Of the parties in interest only Margaret Lovegreen has appealed.

The trustee in administering the trust expended the sum of $ 4213.27 in supporting and maintaining Noah Harry Nichols, of which sum $ 2577.40 was taken from the principal of the trust estate. The trustee also expended the sum of about $ 1300, the exact amount is left in doubt, in paying taxes and costs of administration.

The appellant argues that the expenses of executing a trust created in a will should be charged against income derived from the trust estate and not against the c...