Ewbank
J. Townsend, C. J. and Travis, J., dissent.
OPINION
Ewbank, J.
This
was an action to construe the will of Aaron Rothschild, in
which the executors and a number of the nephews and nieces of
said testator, named in his will as residuary legatees,
joined as plaintiffs. The appellee filed an answer of general
denial to the complaint. The circuit court made a special
finding of facts and stated five conclusions of law thereon,
and the plaintiffs (appellant) other than the executors
excepted to each of the first, second, third and fifth
conclusions of law. The fourth conclusion, to the effect that
plaintiffs were entitled to have the will construed, was not
excepted to. Judgment was rendered in conformity with the
conclusions of law. The said nephews and nieces, named in the
will as residuary legatees, separating from the executors,
have joined in an assignment of errors attacking each of the
conclusions of law excepted to.
The special finding of facts followed in general the
averments of the complaint and was in substance as follows:
That
Aaron Rothschild died testate on June 30, 1915, and on July
1, 1915, his will was admitted to probate; that the appellee
is his widow, having remarried, and two of the appellants are
his executors, and the others are his nephews and nieces
mentioned in his will, and the children of one of his
nephews, who died intestate since his death; that by his
will, said Rothschild directed that his debts be paid, and
bequeathed $ 200 to the Cleveland Hebrew Orphans' Asylum,
and then provided:
"Item 3. I give and devise to my beloved wife, Pauline
B. Rothschild, for and during her natural life, in lieu of
any interest she may have in my estate under the law, the
house and lot where I now live (describing it).
"I also bequeath to her absolutely all household goods,
furniture and provisions which may be on hand and situated on
said premises at the time of my decease, together with any
horses, harness, carriages, which I may have at said time.
"Item Fourth: I give, devise and bequeath all other
property real and personal, of which I may die possessed,
including real estate situate in Portland, Jay County,
Indiana, and also (including the property described in item
third of this will, subject to the life estate of my wife) to
my executors hereinafter named, to be held by them in trust,
to be disposed of as provided in item fifth of this will.
"Item Fifth: It is my will and I hereby direct
that my executors shall keep the property bequeathed and
devised to them in trust in item fourth of this will invested
in such manner as they shall unanimously agree upon, and
shall first pay out of the revenue therefrom all taxes,
insurance, repairs charged against the real estate described
in item third of this will, and the balance of said revenues
they shall pay to my said wife, Pauline B. Rothschild.
"All the residue of my estate real and personal shall be
held by them undistributed until after the
death of my said wife. Upon her death, all the real estate
held by them, including that in which my said wife is herein
granted a life estate, shall be converted into cash, and,
together with all personal property held by them, shall be
distributed share and share alike, to all or such of them as
are surviving, or if any of them shall be deceased, leaving a
child or children surviving them at the time of such
distribution, then the share that would have fallen to such
nephew or niece shall go to such child or children of said
deceased niece or nephew, share and share alike.
"The nephews and nieces heretofore referred to in this
item are (naming them)."
Item
sixth of the will appoints testator's widow (who declined
to serve) and the appellant executors as the executors of the
will, and directs that they "shall not be required to
give bond for the execution of said trust."
The
eighth finding by the court related to a matter of
controversy over the payment of "omitted taxes"
which is not before this court, but omitting it, the further
facts found by the court were as follows:
"4.
That said widow Pauline B., took possession of the house and
lot described in item three of said will under the provisions
of said will, as tenant thereof for life, and has held
possession thereof ever since the death of said testator, and
there was also turned over to her by said executors, as her
absolute property under the provisions of said will, all of
the personal property named in said item third thereof.
"5.
That the specific bequest given to the Cleveland Hebrew
Orphans' Asylum, in item second of said will, has been
paid.
"6.
That all of the residue of said estate is now in the hands of
said plaintiffs, Joseph S. Rothschild and Nathan Rothschild,
as executors of said will, and that they are holding the same
under and subject to the trusts in said will created, limited
and declared; that all of said property is
income producing and consists of stocks and bonds of the fair
market value of $ 105,000; that the same produces a gross
annual income of approximately $ 4,700 each year.
"7.
That the taxes assessed against the funds and property in the
hands of said executors, constituting said trust estate for
general state, county and municipal purposes, has heretofore
amounted to the sum of about $ 1,000, annually, and that in
the future such taxes will amount to approximately the sum of
Five Hundred Dollars, annually, and that in addition to said
taxes large sums of money will be necessarily expended by
said executors in administering said trusts created, limited
and declared in said will, and executing said will, by way of
executors' charges, counsel fees, court costs, and other
expenses, incident to the administration of said trust. * * *
"9.
That the whole estate and property of said testator now in
the hands of said executors is covered by the trusts,
created, limited and declared in said will, and constitutes a
part of said trust fund and estate, and that said executors
do not have in their hands or under their control nor is
there in said estate any property whatsoever of any kind or
nature whatsoever except that which is covered by the trusts
so created, limited and declared in said will, and which
constitutes said trust fund and estate.
"10.
That said executors have been required to file a report of
their doings as such executors, in this circuit court, in the
matter of said estate, but that doubts have arisen as to
whether the assessment of approximately $ 2,800 levied and
made against said executors for taxes on account of said
omitted property, should be paid from the principal and
corpus of said trust fund or estate, or from the incomes
derived therefrom, and as to whether the general state,
county and municipal taxes levied upon said
trust fund and property since the death of said testator, and
which may be levied and assessed in the future, shall be paid
from the principal or corpus of said trust fund, or from the
incomes derived therefrom, and as to whether the fees due
said executors, their counsel fees, the court costs, and
other expenses heretofore incurred, and which may be incurred
from time to time, in the future in, and incident to, the
administration and execution of the trusts created, limited
and declared in said will, shall be paid from the principal
or corpus of said trust fund or from the incomes derived
therefrom, and as to whether, in rendering their accounts as
such executors said taxes and expenses or any part thereof
shall be chargeable against, and payable from said incomes,
or the whole or any part thereof shall be chargeable against
and payable from the principal and corpus of said trust fund
and estate, and that by reason of said doubts said executors
can not safely proceed with the administration of said trust
or the discharge of their duties as such executors, or file
their report, until the true meaning and construction of said
will is judicially determined, and that said executors now
have in their hands a large sum of money derived as incomes
from said estate which they can not safely pay out until it
is first judicially determined whether said taxes and
expenses of administration or any part thereof is payable
from said incomes, or from the corpus or principal of said
estate."
The
first conclusion of law related to the payment of
"omitted taxes," and the exception thereto has been
expressly waived, and the fourth declared the right to have
the will construed, to which no exception was taken. The
second, third and fifth conclusions, to which appellants
reserved exceptions, were as follows:
"2.
That the general state, county and municipal taxes levied and
assessed by the public authority upon the trust
fund and estate in the hands, and under the control of said
executors
is payable from and chargeable against the principal or
corpus of said trust fund and property in the hands and under
the control of said executors, and that no part thereof is
chargeable against or payable from the incomes derived from
said trust estate and property, except that the taxes levied
and assessed against the real estate described in item third
of said will are payable from and chargeable against said
incomes.
"3.
That the fees due the executors, attorneys' fees, court
costs, and other costs and expenses incurred in or incident
to the execution of the trusts...