Smullin v. Wharton
| Decision Date | 06 February 1909 |
| Docket Number | 15,840 |
| Citation | 119 N.W. 773,83 Neb. 328 |
| Parties | MARGERY H. SMULLIN ET AL., APPELLEES, v. IDA M. WHARTON ET AL., APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: HOWARD KENNEDY JUDGE. Reversed with directions.
REVERSED.
W. W Morsman, for appellants.
John C Cowin, J. H. McIntosh and F. A. Brogan, contra.
For a statement of the issues and facts in this case up to the filing of the opinions reported in 73 Neb. 667 at 667-711, we need only refer to the record in the report of the decisions. The cause was remanded to the district court, and by the mandate issued by the clerk of the supreme court, of date October 8, 1907, the district court was directed to "take an account of and ascertain what sum per annum is sufficient to support and maintain the appellee, Ida M. Wharton using the family homestead, according to the style of living to which she was accustomed at the time of the death of the testator, and to charge the payment of the same annually during her life upon the income of the trust estate devised to Westerfield, and upon the corpus thereof if the income is insufficient, and according to the conditions of said trust; second, to charge the said appellee as trustee in trust to pay and distribute annually all such surplus income from the trust estate, if any there be, after providing for the maintenance of the appellee as aforesaid, and such gifts to charitable purposes as she may desire to make from time to time, not exceeding $ 10,000 in all, to the brothers and sisters of the testator, share and share alike, the issue of deceased brothers and sisters, if any such issue, to take the share of the deceased parent; third, for such other accounting and decree as may be necessary to carry fully into effect the provisions of the constructive trust declared to exist and of the trust declared by the will in Westerfield, and according to the views expressed in the opinion by Chief Justice HOLCOMB, and the subsequent opinions of this court." The commanding part of the mandate is practically a repetition of the above, and need not be further copied here. A copy of the opinion by Judge LETTON (73 Neb. 705, 706) was attached to the mandate and made a part of it.
Upon the reappearance of the case in the district court, a number of amended and supplemental pleadings were filed, but it is not deemed necessary to set them out, as they consisted principally in shaping the issues to correspond with the mandate and opinion of this court. They also contained statements of accounts of moneys received and expended by defendant and the trustee, and a list of the property of which the testator died seized. Defendant claimed that the amount of money to which she was entitled, as of her own, absolutely, out of the trust estate, was $ 7,200 per annum, as and for her maintenance according to her previous style of living, while plaintiffs insisted that $ 2,000 per annum would be a sufficient allowance. The cause was tried to the district court, which resulted in an extended and elaborate finding of facts and decree fixing the amount which defendant could retain for her maintenance and support at $ 5,400 per annum, the allowance beginning January 1, 1908, and also allowing her to make donations to charitable purposes, as indicated in the will, and approving and allowing her for moneys paid out for taxes, improvements of the trust property, and directing that the same be paid out of the trust fund for her reimbursement. Her claim for moneys paid for attorneys' fees and expenses growing out of the litigation in the contest of the will of the testator by plaintiffs was allowed in part, and the costs of this suit were adjudged against her personally. From this decree she appeals, assigning as error the ruling of the district court limiting the allowance of $ 5,400 for her maintenance to begin January 1, 1908, instead of June 1, 1895, the date of the death of the testator, and refusing to allow interest at 7 per cent., that the court erred in not allowing her a sufficient sum for her expenses incurred in the litigation in which the will was established and admitted to probate, and that the court erred in adjudging her to pay the costs of this action. The case is brought here upon the pleadings, the findings and decree alone. Defendant presents no bill of exceptions. All orders and parts of the decree allowing her for moneys expended, payment of commissions, and for services of the trustee, in fact all findings not involved in the three assignments above pointed out, stand affirmed, approved and as final, and will not be noticed herein. There is no appeal from the action of the trial court in fixing the amount to which defendant is to be entitled at $ 5,400 per annum, and that part of the decree will stand without review, save as to the date from which the allowance is to be made, and, in case it is directed to have its beginning at an earlier date, upon the question of interest.
The contention of defendant is that the allowance, if it might be so designated as determined by the trial court, is and was the first that it has at any time been judicially, or otherwise, ascertained as to what is meant by the disposition of the property contained in the will, and therefore it is of the same import and effect as if it had been written in the will specifically and must be now so treated; that, had this provision been written in the will, there could be no question but that defendant would have been entitled to that sum out of the trust estate annually from the date of the death of the testator; that the decree of the district court fixing the amount per annum which defendant might retain as hers absolutely should be treated in the same way and governed by the same rule. It is claimed by defendant that, since the estate has been in constant litigation from the time of the proposing of the will for probate to the present, she has not been able to realize the full allowance, and therefore an accounting should be had; that she be credited with the said sum of $ 5,400 each year since the death of the testator, and charged with the amount received out of the trust estate and applied to her own use, a balance struck, and if the amount so received and applied by her should be less than the sum fixed, that the difference be decreed to her, with interest thereon from the close of each year to the present time, at the rate of 7 per cent. per annum; that the fixing of the date at January 1, 1908, in the decree cuts off such accounting and is to the prejudice of defendant. It is insisted that defendant has not received to her own use, for any one year, the amount so fixed, and that there is due her, of principal and interest, under this contention, the sum of $ 63,077, which the trial court refused to allow. Upon the other hand it is contended by plaintiffs that it was within the jurisdiction and power of the district court to fix upon a date when the allowance should begin to run; and that, since the defendant has had during the time named sufficient to supply her needs, without reference to whether the same was supplied in part from her own means or from the trust estate, and since no greater demand has been made by her than for the amount actually received, no greater allowance should be made.
As finally construed by this court, the will created a trust or duty on the part of the defendant to distribute the surplus income of the trust estate annually after supplying her own wants, among the designated relatives of the testator, who to that extent were made legatees under the will; that, while the will was silent upon the subject, yet sufficient was shown of the requests of the testator to his wife, and her agreement thereto, to warrant the reading into the will the provision thus agreed to by her providing for his relatives. By the terms of the will the subsequent conveyances and transfer by the testator of certain property to his wife, and, as held by the former decisions of this court, the property so conveyed and transferred to the wife, forms no part of what is termed the trust estate. As said by Judge LETTON (73 Neb. 705, 708), in referring to this property: This being true, it is claimed that, since she is limited to the $ 5,400 per annum, it would not be equitable to compel her to rely to any extent upon her own means for her support, thus depleting the amount to which she is entitled, and to the same extent increasing the surplus going to plaintiffs; that, if she is entitled to withhold the sum named under the provisions of the will of her deceased husband, this has been her right each year since his decease, but the segregation of said sum from the trust estate and the distribution thereof has been prevented by the litigation in which the estate has been continuously involved, and has prevented the receipt of the same by her and the distribution of the surplus. Defendant demanded of the court that a finding and decree be entered directing the trustee to pay her the said sum of $ 5,400 for each year ending the 1st day of June, commencing June 1, 1895, the date of the death of the testator, less the amounts received by her from said estate each year, with accrued interest. This the court refused to do, holding, "as a matter of law, that the defendant Ida M. Wharton is not entitled to recover from the trust estate any part of the sum of $ 5,400 for any prior year, for the reason that the evidence fails to show...
To continue reading
Request your trial