Rothschild v. Weinthel
| Decision Date | 30 June 1921 |
| Docket Number | No. 23453.,23453. |
| Citation | 191 Ind. 85,131 N.E. 917 |
| Parties | ROTHSCHILD et al. v. WEINTHEL. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Allen County; J. W. Eggeman, Judge.
Action by Joseph S. Rothschild and others, as executors of the last will and testament of Aaron Rothschild, against Pauline B. Weinthel. From a judgment for defendant, plaintiffs not named, who were residuary legatees, appeal. Reversed and remanded, with directions.
For dissenting opinion, see 132 N.E. 687.
Leonard, Rose & Zollars, of Ft. Wayne, for appellants.
Barrett, Morris & Hoffman, of Ft. Wayne, for appellee.
EWBANK J.
This was an action to construe the will of Aaron Rothschild, in which the executors and a number of the nephew 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 (appellants) 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 the 30th day of June, 1915, and on the 1st day of July, 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, Hay 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 directthat 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 3 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 $500 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.
(8) ***
(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 cannot 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 cannot 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 appellant 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, attorney's fees, court costs, and other costs and expenses incurred in or incident to the execution of the trusts created, limited, and declared in said will are payable from and chargeable against the principal...
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