83 Neb. 328 | Neb. | 1909
Lead Opinion
For a statement of the issues and facts in this case up to the filing of the opinions reported in 73 Neb. 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 pay
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 foj 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 find
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
As above suggested, the first and principal question presented is from what date should'the allowance be made to run? If the defendant’s contention that the effect of the decree is that the sum of $5,400 should, by virtue of the decree, be treated as if written in the will in terms, it-would seem that it should have been held tbat the sum thus ascertained as the amount to be retained for the sole ,use of defendant must date from the death of Mr. Boggs, the testator. The provision of the will, as finally construed, is that defendant shall receive, to her own use from the trust estate a sufficient sum of money annually to maintain and support her according to her standard of living prior to the death of her husband, no definite sum being named. The district court by its decree has said that the amount of money annually necessary to such maintenance is $5,400. This, if correct now, must have been the correct amount during the whole time since the right accrued, else it would be fluctuating and changing each year, and nothing could be said to be fixed or determined by the decree, the whole inquiry remaining open for modification and change by any subsequent ruling. This is not, and cannot be, the case. The amount fixed by the court is to stand as a permanent finding and decree. It is a judicial declaration that the will shall read “$5,400 per annum to defendant, the surplus to plaintiffs.” If this be correct, it would seem that the question is one of easy solution. Treating it as though the sum fixed by the court was within the will, as we must, it follows that defendant has been entitled to the retention annually from the trust fund of the amount named. • The rule declared by some of the English courts, seems to be
It is an elementary rule that the provisions of a will take effect and become operative at the time of the death of the testator. By the provisions of the will itself, unaided by extrinsic evidence, there is no specific trust imposed upon defendant with reference to the income or body of that portion of the estate devised and bequeathed to the trustee. The clause included in the trust provision conferring any rights or interest in the éstate is the fourth thereof, which makes it the duty of the trustee, upon the death of the wife of the testator, defendant herein, to divide the remaining portion of the trust estate equally between his brothers and sisters, or, in case of the decease of any of them leaving issue, that such issue receive the portion that the parent would'have received had he or she been living. But, as has been declared in the previous decisions, a contemporaneous conversation and agreement between the testator and his wife created a trust in their behalf, said trust being engrafted upon and read into the will, doubtless as giving effect to the trust created in and by the will. By the terms of the mandate issued from this court to the-district court, the latter court was “commanded, without delay, to take an account 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
In the opinion by Judge Letton (73 Neb. 709), it is said: “Mrs. Wharton’s reasonable expenses in the litigation in which the will was established should be paid out of the whole estate taken under the will, including taxable costs and reasonable attorneys’ fees. The taxable costs in this case should be adjudged against Mrs. Wharton per
Lastly, it is insisted that the district court erred in taxing all costs to defendant. We 'grant that a large discretion is vested in the trial courts in the matter of the taxation of costs urider section 623 of the code. But, as held in Wallace v. Sheldon, 56 Neb. 55, and In re Clapham’s Estate, 73 Neb. 492, this discretion is not an arbitrary one, but a legal one, to be exercised within the limits of legal and equitable principles. It is suggested that in the opinion of the district court the statement contained in the above excerpt from the former opinion in this case
Reversed.
Dissenting Opinion
dissenting.
I am unable to take the same view of the rights of the parties in this case as that expressed in the opinion of the chief justice. In the second opinion in the case, written by Holcomb, C. J. (73 Neb. 705),the following language is used: “The former opinion should be accordingly modified, and the trust property held to have vested in the collateral heirs of the testator named in the will, subject to the use of the net annual income and the principal estate by the appellee, Ida M. Wharton, as the same may be reasonably necessary and required to support and maintain her in the style of living she had been accustomed to, and subject to her right to devote not exceeding $10,000 to charity.” In. the body of the opinion the following expressions are used (p. 700): “It seems reasonably clear that he impounded a specific portion of his estate, the bulk of it, to be used, first, for the support of his wife, if required; and, second, the remainder to go to his heirs as named in the provisions of the express trust found in the will.” On page 701 the following is found: “If this language be construed, as we think it should be, as applying to the property devised to Westerfield in trust, and as giving to the wife the right to the use of the annual income in so far. as it is required to maintain her in the style and comfort she had been accustomed to, and also a like right to the original fund or property devised in trust, if so required for a like purpose, then the matter is resolved into a very simple proposition wherein lies no serious difficulty in the way of the enforcement of the trust. The $5,000 or $10,000 to be devoted to charity, if the wife so desires, involves only a matter of mathematical computation, the limit being $10,000, the limit in other respects being what is required and reasonably necessary for the support of the wife in the style and
While the contest of the will was pending, this income was not accessible to her, and she could take nothing from the estate except as allowed by the county court and paid to her by the special administrator. The property was not
We are confined to the findings of the district court in regard to the facts. It found “that the sum per annum sufficient to support and maintain Ida M. Wharton, formerly Ida M. Boggs, using the family homestead, according to the style of living to which she was accustomed at the time of the death of the testator * * * is $5,400.” The court further found: “The defendant Ida M. Wharton, since the death of the testator, has not lived and is not now living in the style intended by the testator, but has lived and is living in a less expensive style than that to which she was then accustomed, and it does not appear whether the actual expenses of her maintenance exceed the amount received by her from the allowance made by the county court and the net income* from the trust estate.” The decree further recites: “The court holds, 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 that during any such year she actually expended for her support more ■than she received during the year from the trust estate.” Under these findings of the district court, I think no other decree would be proper, on this branch of the case, than that which the trial judge rendered. I think the following cases tend to support these view s. Blanchard v. Chapman, 22 Ill. App. 341; Collister v. Fassitt, 163 N. Y. 281; Bailey v. Worster, 103 Me. 170; In re Simon’s Will, 55 Conn. 239; Johnson v. Johnson, 51 Ohio St. 446; Garland v. Smith, 164 Mo. 1.
As to the matter of the allowance for expenses in defending the will, the lower court found that $10,673.33 was her reasonable expenses incurred in the litigation in which the will was established. I-think we are concluded by this finding in the absence of a bill of exceptions, and
As to the costs in the matter of the accounting in the district court, I think it proper that they be paid out of the corpus of the trust estate, since the controversy was one made in good faith as to the proper disposition of that property. I think the judgment of the district court should be affirmed, except as to this last item, as to which I concur with Judge Reese.
The following opinion on motions to correct and for rehearing was filed May 7, 1909. Corrections allowed. Rehearing denied:
1. Wills: Construction: Allowance to Widow. Tlie opinion filed and judgment entered in this court, ante, p. • 328, corrected and amended so as to allow defendant’s support from the trust es.tate instead of from the income thereof.
2. -: Actions: Costs. At the suggestion of counsel for defendant, in order to prevent further litigation, the decree of the district court in the matter of the allowance to defendant for costs, expenses and attorneys’ fees is affirmed.
3. Interest. The former holding refusing to allow defendant interest on the annual allowance of $5,400 for support adhered to.
The opinion written upon the last appeal in this case is reported, ante, p. 328. Subsequently defendants filed a motion to correct alleged verbal errors in the opinion. The first clause in this motion seeks to correct a supposed error occurring at the close of the paragraph which discusses the allowance to defendant of $5,400 per annum to begin at the date of the death of the testator instead of January 1, 1908, as fixed by the judgment of the district court. In the opinion it is held that the defendant is entitled to the $5,400 annually from the date of the death of the testator, “to be paid out of the income of the trust estate, less the amount received by her,” but without in
Again, objection is made to the holding, ante, p. 328, in which the decision of the district court is reversed on the question of the allowance of attorneys’ fees paid by the defendant. It was stated by counsel for her in the argument on this motion that, rather than enter upon a re-examination of this question in the district court, and thus cause further delay in the final settlement of the estate and the further continuance of the litigation, defendant would prefer that the judgment of the district court giving her credit for $10,000, instead of the whole amount paid, should stand. The judgment will therefore be that that part of the decree will be affirmed.
It follows that the order for the judgment of this court should be changed to read as follows: The judgment of the district court, as to the questions herein reviewed and set aside, is reversed and the cause is remanded, with directions to said court to enter a supplemental decree requiring the trustee to pay to the defendant, Ida M. Wharton, out of the trust estate, a sum equal to the sum of $5,400, per annum, from June 1, 1895, to January 1, 1908, less such sums as have been heretofore. paid to or received by her out of the trust estate, as established by the facts found and set forth in the decree of said court, and that all taxable costs of the last trial and of this appeal be taxed to the trust estate to be paid by the trustee.
Plaintiffs have filed a motion for a rehearing, which is supported by an elaborate brief which has been carefully considered. Some of the propositions contended for have already been disposed of doubtless to the satisfaction of plaintiffs. All others are found to question the correct
Defendants have also filed a motion for rehearing, alleging as ground therefor that this court erred in directing that a further accounting be had, since, as alleged, an accounting has already been made and all necessary facts found. The only matter now left for an accounting is as to the amount received by defendant out of the trust estate since the death of Mr. Boggs to be charged up against the $5,400 per annum to which she is entitled. To our minds the findings of the district court are not entirely specific upon this point, but, should it be so held by that court, or should the court be able to arrive at a satisfactory conclusion from the evidence offered upon the trial, which is not before us, no accounting will be necessary; if not, it will have to be made.
The second ground of the motion is error in not allowing defendant interest at the rate of 7 per cent, on the annual allowance of $5,400. While we adhere to the holding that the annual allowance must date from the death of the testator, we are entirely satisfied that defendant cannot, in equity, be held entitled -to interest under the circumstances of this case. It would be against right and conscience to allow it.
The one other ground presented is upon the allowance to defendant of the costs and expenses in establishing the will, including her attorneys’ fees paid in that behalf, and which has herein above been disposed of. Defendant’s motion for rehearing is also overruled.
Corrections allowed. Rehearing denied.