*1 Adjustment juris- the National Railroad Board has diction of controversies and its between union mem- Conley bers, 299, S. 78 Ct. L. Gibson, 355 U. S. preemption Ed. has no 2d therefore the doctrine application here.
The order of dismissal the trial court is reversed proceedings cause remanded for con- further opinion. sonant with this and remanded for
Reversed FURTHERPROCEEDINGS. JJ., Boslaugh,
McCown
dissent.
appellee
trustee,
Donald
and cross-appеllant,
appellee
v. Rollie cross-appellant,
Betty
Impleaded
appellees,
J.
et
with
al.,
appellants.
al.,
John McArthur
et
Filed No. 1971. 37860. appellants. James for Glynn appellee Christensen, & for Hendricks, Hays. Berry, appellee Kenneth Cobb and J. S. for Johnson. Kelley, appellee Reed and P.
Charles S. William Virginia Reller. McCown, Smith, Spencer, Boslaugh,
Heard before JJ. Clinton, Newton, J.
Boslaugh, *2 R. Merril of This is an action the will to- сonstrue August ad- was 1968. His will Reller who died on by pro- probate administered mitted to and his estate County, ceedings Ne- in Lancaster county court of 11, 1968. on June braska. executed The will was Cen- controversy Thе Commercial here concerns the lying of Cornhusker ter Highway a of north which is tract land Nebraska. Lincoln, large in and west of 40th Street The a includes Commercial Center buildings valued a and number of business and purchased proceedings It was $322,635. in the estate at by the deceased in 1949. Paragraph III of the will devised terms, Hays, subject and R. to in trust to Donald brought
conditions by will. This action was set out Hays of the will a construсtion to obtain regard are defendants in Virginia his as trustee. duties deceased; Herbert of the
Reller, widow of Reller, Reller, heirs-at-law Reller, Helen and Carl Betty Johnson, J. deceased; and Rollie C. Sаlly McArthur, A. Gordon John and A. Reller, James McArthur. provides generally Cen- will that the Virginia
ter of the life shall be held in trust years remainder thereafter, for 5 with Reller and Hays Sally and provides is and Rollie Johnson. The will what part of all or of the be done event sale of contingent provides bene- and for ficiaries. part: (C) provides
Paragraph “The III conducting present business, rentals divi- method of practicаble profits, near as continued as sions shall be profits therefrom, received the share paid by now received Merril R. Reller, shall be Virginia provision express Reller, trustee that if, time, at the net rеntals and received by Virginia payment management Reller, after fees, upkeep, per is $1,000.00 less than taxes month net Virginia period to tively, Reller of three months consecu- Virginia may, option, rеquire
then Reller at her power sold, Commercial Center to be this sale, should above conditions absolute arise, shall be question. specifically provide long without that so per the $1,000.00 month is reсeived Reller, personal whether it come actual rentals or con- by any parties having surviving tributions of the in- power provided terest therein, that of sale herein be exercised.” controversy part centers around this of the will. language unintelligible is will itself “present absence of extrinsic evidence as to the method conducting profits.” business, rentals and divisions of *3 evidence is admissible to Such shоw the cir- attendant cumstances under which the will was made and to en- place the court in able itself the situation of the testa- Wirth, 178 74, tor. Davis Neb. 131 N. W. 718; In 2d Dimmitt, 413, 141 Estate of Neb. 3 re N. W. 2d 752, 144 704; 25 313, L. R. Little v. Giles, A. Neb. 41 N. W. 186. The record shows that aftеr the Commercial Center purchased operated by testator, the was testator, it was the McArthur, and Rollie
John C. Johnson. After Hays participated operation. Donald R. 1962, its in Hays McArthur and in were associated with the testator practice of law. Johnson the worked full time and management the direct court. had the filed answer the defendants John McArthur alleged Hays persons Sally A. that the who were management the in Commercial active the had unequal in “acquired therein interest amounts” and rights “confirm the prayed that and interests parties hereto.” of the 310 Com- title
The trial court found the rеcord that of his the time in the testator mercial Center was at exist- show the that evidence did death not composed testator, John Mc- ence aof S'ally Hays, A. Donald R. Arthur, Rollie C. Johnson, Hays, any or of them. Sally Hays McArthur and A. John defendants appealed. plaintiff,
have cross-appealed. defendant any plaintiff of the de- To extent Cen- Commercial interest fendants claimed ter, in undеr the will beneficiaries other than as of the de- deceased, was adverse to their interest testimony representatives, and their ceased and his conversations with the deceased to trаnsactions and Supp., 25-1202,R. S. 1969. under section not admissible 811; 269 N. Gerdes Petersen, Neb. W. Reitz v. Boys, 89 W. 2d Home for Neb. N. v. Omaha 849. appel- remaining evidence does sustain partnership. regard There are no claim
lants’ partnership records, sense, the usual for the Com- account, no books are and the Center. There mercial checking A account. Center had writ- July signed by agreement, 3, 1966, dated de- ten Sally cеased, Hays This in evidence. was received operation engaged ferred agree- Center. The known as business legal provided to the Commercial ment further title he remain deceased аnd that would preserves the interests “maintain effect which *4 remaining partners the said Commercial of all the indicates, the that deceased Center.” The may only the use of the contribute intended аlleged partnership property the and that no other any party acquire interest would except by Gingery, devise. See Norcross v. Neb. 150 N. 2d 919. W.
The evidence that Rollie C. shows Johnson collectеd from rentals from some court buildings the tenants business accounted monthly. paid expenses the deceased certain Johnson out of the rentals, deducted his share the rentals, then remitted the balance to the deceased.
The record contains tax returns income filed in the name of the Commercial Center for each year from 1950 to inclusive. The 1967 return profit partners’ a net $25,475.33 shows sрective shares of income as follows: The deceased, John McArthur, and $5,095.07 each; and Rollie C. $10,190.12. There is no other competent showing evidence that these amounts were actually parties or received credited to’ the involved. Except by for the .share rentals retained payments several isolated to Mr. and Mrs. anyone does the evidence not show that other than received, any part ever deceased of the income from Commercial Center. evidence shows that the except deceased received of the income that retained by аny Rollie C. Johnson does not show that of it actually him to distributed the others listed in returns.
The trial court found that there was some evidence relationship working management in the appel- Center between the deceased and the cross-appellants, lants and the but the evidence partner- sustain that there was a ship appellants cross-appellants or or were entitled to share income Commer- the life cial Center Reller. These findings are the record. sustained pay found trustee should operation of from the net monthly during Virginia Reller her lifetime. In de-
312
termining the net income authоrized the trustee was operating expenses, including remu- to deduct paid repairs, taxes, Rollie neration to be to county The fees court. trial court allowed expenditures replacement by the for the limited trustee machinery, equipment, appliances, of depreciable other fixtures, and gross
property percent in- 5 the annual to of Center. limitation was come оf the Commercial This guideline subject to and is intended as trustee show event circumstances modification changed. limitation be should em- trustee to court directed the to continue compensаtion ploy Rollie C. Johnson limited his in 1967. This not to exceed that received an amount subject event is direction modification change in circumstances. complains improperly that the trial
The trustee court improvements authority capital his to make restricted by requiring him of Vir- obtain the written consent improvements. ginia Paragraph In Reller for all such part III(B), provides in that “the trustee shall will imprоvements,” capital power to authorize have Virginia portion Reller’s therefrom “use such agrees writing.” improvements, capital if she so for The trial capital improvements as im- defined distinguishеd provements estate as to the real property, machinery depreciable placement susch as repairs. ordinary appliances, under- this With interpretation standing, the trial court’s we think correct. judgment district court is affirmed.
Affirmed. J., Clinton, concurring. only. majority opinion result
I concur competent say there evidence from is seems persons desig- made could that those be which property beneficiaries in the remainderman nated Center are under entitled as the known Paragraph (C) III the income from of the will to share lifetime imply Reller. further It there seems to must partners an been actual distribution of income to the or ing support credit on books of a find- account order to disagree. in income. With this filing income returns from *6 through showing part- shares income togethеr July ners, exe- cuted was, Merril Reller certain of others, my opinion, finding support sufficient “present conducting method of business rentals and divi- profits” sion remain- in which the derman had an interest.
There is if believed, evidence in record which, support part- that it was a bonafide nership. I concur because believe the result judge, who observed witnesses and man- their testifying, ner of must on the concluded basis this еvidence that in fact there was based accompanied sharing. on services actual income re Reller, In Estate of Merril deceased. Virginia Reller, Executrix Estate of Merril deceased, Reller, appellee, et al., McArthur appellants.
189 W. 2d N. September 3,
Filed 1971. No. 37861.