McClintock v. Smith
| Decision Date | 14 October 1947 |
| Docket Number | 49098. |
| Citation | 29 N.W.2d 248,238 Iowa 964 |
| Parties | McCLINTOCK v. SMITH. |
| Court | Iowa Supreme Court |
V O. DeWitt, of Sioux City, for appellant.
Gill & Gill, of Sioux City, for appellee.
This is an action calling for the interpretation of the will of Jane Chadwick, deceased, and thereby a determination of the rights of the cestui que trust and the duties of the trustee, under a trust created by the will of decedent.
Plaintiff guardian of the cestui que trust, claims the right to receive the corpus of the trust, or at least a part thereof irrespective of the personal estate of his Ward. Defendant, trustee, claims that only after the Ward's personal estate has been exhausted, is she entitled to the benefits of the trust.
The trial Court allowed the Ward the current income from the trust but refused her claim as to the corpus thereof. From an order thus entered, plaintiff appeals.
Agnes Hemphill, incompetent, is a sister of Jane Chadwick, now deceased. Prior to her death, Jane Chadwick was guardian of her sister and provided her with a home. Since the death of Jane Chadwick, the sister has been at the State Hospital at Cherokee, Iowa. Agnes Hemphill has in her own right, farm land in Dakota and two small rental properties in Sioux City, Iowa. The average gross annual income is about $1000. The expense of keeping her at the hospital is $360 per year, while taxes, guardianship expense and partial upkeep of the properties, makes a total fixed expense of about $550. At the time this proceeding was commenced, the guardian had on hand $987.80. The guardian, since the death of Jane Chadwick has expended for his Ward the sum of $2,832, all of which came from her personal estate. The rental properties are in need of repair, the estimated cost thereof being $1,000.
Jane Chadwick, died testate and her will was duly admitted to probate. E. J. Smith, defendant, qualified as executor and was also appointed as guardian of Agnes Hemphill. He later resigned as such guardian and C. T. McClintock was appointed. Under the terms of the will a trust was created with Agnes Hemphill the beneficiary, the said Smith being named trustee. The estate has been administered and the assets turned over to the trustee in accordance with the provisions of the will. While acting as executor, Smith converted the estate into cash, as authorized by the will. There is now in the trust the sum of $7,106.74 which, under authority from the Court, has not been invested.
As previously stated, appellant asks that he be reimbursed the $2,832 paid out; that he be allowed $1000 for the repair of the properties and also an allowance to pay his attorney in this action.
The provisions of the will, so far as material here, are as follows:
'Par. V. I * * * appoint * * * Smith * * * as executor * * * and hereby authorize him to sell any and all of my property * * * as he deems best in his judgment, for the use and benefits hereinbefore provided * * *'.
Where a trust is created by will, the rules governing the construction of wills are to be applied. The intent of the testator is the governing question and its answer is to be found by an examination of the entire instrument. Hamilton v. Hamilton, 149 Iowa 321, 128 N.W. 380; Restatement of Law of Trusts, Section 4, (c); also Section 38; In re Will of Proestler, 232 Iowa 640, 5 N.W.2d 922. The real question here involved turns on the meaning of the words 'Use and benefit'. These words are not technical nor ambiguous but are commonly used and have well established meaning. 'Use' as defined in Webster's International Dictionary, 2d Ed., means: '* * * benefit; profit; * * * a trust of real estate'. 'Benefit' means 'to gain advantage; to receive benefit; to profit'. These terms have been held to be synonymous. See State v. Brooks, 85 Iowa 366, 374, 52 N.W. 240.
The question of the meaning and effect of the words 'use and benefit', when used in a will, has been before this court. In the case of Wohlgemuth v. Des Moines Nat. Bank, 199 Iowa 649, 653, 192 N.W. 248, 250, property was by will given in trust for the benefit of testator's children with provision that after 20 years the children took the property. We say therein--'It is true that the property was devised to trustees for the use and benefit of the children of testator, and that under the well-recognized general rule this is a circumstance favorable to immediate vesting of the title, but this circumstance must, like all others, give way to the clearly expressed contrary intention of the testator. * * *' In Pool v. Napier, 145 Iowa 699 124 N.W. 755, property was devised to another for his use and benefit with full power to use and transfer the same as if he had a fee, but further provided that upon...
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