86 Neb. 553 | Neb. | 1910
Lead Opinion
This appeal presentó one phase of a protracted controversy over the residuary estate of George H. Boggs, who died without issue Dune 1, 1895, leaving a will through
This position, however, was abandoned on rehearing. A constructive trust was subsequently declared in an opinion by Chief Justice Holcomb, and the following conclusion was reached: “The case is remanded, with directions to the district court 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
The district court, after the case reappeared there for further proceedings, alloAved Mrs. Wharton, by a decree rendered June 1, 1908, to retain for her maintenance and support $5,400 a year, beginning January 1, 1908. From the alloAvance thus made she appealed to this court, insisting it should begin at the death of testator, June 1, 1895, instead óf January 1, 1908. This contention Avas sustained, though part of the decree of June 1, 1908, Avas not disturbed. Smullin v. Wharton, 83 Neb. 328. In again remanding the case for further proceedings these directions Avcre given: “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 trastee 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
In the further proceedings thus directed by.this court, the trial court supplemented the decree of June 1, 1908, by the following findings and judgment:
“1. That Harry A. Westerfield, as special administrator, collected from the income of the real estate of which the testator died seized the sum of $27,653.15, and expended therefrom, for taxes and repairs and other expenses of maintaining the said property, the sum of $9,194.83, leaving the net yield from the income of the said real estate the sum of $18,458.32.
“2. That said Harry A. Westerfield, as special administrator, converted the personal property which passed under the will, and which is described in finding numbered 3 in said decree of June 1, 1908, as of the value of $10,000, and received therefrom the sum of $7,949.78, and expended in the process of collecting and reducing the same to money tlie sum of $201.73, leaving the net yield from the personal estate the sum of $7,748.05.
“3. That the amounts received by Harry A. Westerfield, as special administrator, and set forth in the two preceding findings, were mingled by him, as stated in the fifth finding of said decree of June 1, 1908, and out of the same he paid to the defendant, Ida M. Wharton, the sum of $20,700 on account of her allowance as widow, and paid to himself, for his services in reducing the per
“(a) The devise to Westerfield, trustee, as set forth in the will, being the devise of the ‘rest and residue’ of the.estate of which the testator died seized, the gift of personal property to the defendant Ida M. Wharton, was exempt from the allowance made to her by the county court and from all debts and expense of administration; but she is not entitled to have the amount of said legacy, which was expended by the special administrator aforesaid, now set off against the sums charged to her in this accounting as partial payments of the annunity of $5,400, to which ruling the plaintiffs except, and to the refusal to allow such set-off the defendant Ida M. Wharton excepts.
“(b) The ‘rest and residue’ of the estate, which passed into and constituted the trust estate under the devise to Westerfield, trustee, was that which -remained after payment of the allowance made by the county court to the widow, and all debts, specific legacies and expense of administration; and no part of the sum of $20,700, paid to the said Ida M. Wharton, as aforesaid, was paid out of the trust estate, to which the plaintiffs except.
“(c) The only sums which have been paid to or received by the said Ida M. Wharton out of the trust estate are specially found and set forth in the findings of fact made by the court in said decree of June-1, 1908, and
“It is therefore considered, ordered and decreed by the court that the defendant John C. Wharton, trustee of the express trust created by the will of George IT. Boggs, deceased, and his successors in trust, pay to the said Ida M. Wharton out of the trust estate, the sum of $55,873.79, with interest thereon at the rate of 7 per cent, per annum from the date of this decree, in addition to the sums heretofore decreed to be paid to her, and in satisfaction of the sums due to her annually from the date of the death of the testator of January 1, 1908, as determined by' the judgment and the mandate of the supreme court in this cause, to wMch the plaintiffs except.”
The record shows that Mrs. Wharton received funds during three periods of the litigation as follows: From the time the will Avas offered for probate until the contest ended in 1902 Westerfield was in charge of the trust estate as special administrator, and, under an order of the county court allowing the AvidoAV $300 a month, paid her from mingled funds derived from both personalty and realty the sum of $20,700, a portion of the total allowance. During the period from 1902, after the wall had been probated, until Westerfield retired as trustee in 1905, he paid her as the net income from the realty the sum of $7,893.71. From the date John C. Wharton became trustee until January 1, 1908, he paid her as net proceeds of the income from the realty the sum of $4,182.50, It is obvious from an examination of the decree now presented for reAdew that the district court in the accounting credited Mrs. Wharton with $5,400 a year from June 1, 1895, to January 1, 1908, a period of 12 years and 7 months, or a total of $67,950; that she Avas charged
1. The direction of this court to the trial court was to require the trustee to pay to Mrs. 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
“I give, devise and bequeath to Harry A. Westerfield, of Omaha, Nebraska, as trustee, all of the rest and residue of my estate, of whatsoever nature and kind, to be held by him in trust, upon the following trusts: (1) To pay out of the same all the expenses of maintaining the same and administering the said trust. (2) To deposit in bank to the credit of my said wife during her life, for her own use, all the net rents, issues and profits thereof, such deposits to be made daily as said rents, issues and profits are received and collected. (3) On the request in writing at any time or times of my said wife to sell any part thereof and to deliver to her, for her own use absolutely the proceeds of such sale, or otherwise invest the same in the name of said trustee and for the purposes herein specified, as she may direct. (4) Upon the decease of my said wife my said trustee shall without unnecessary delay, divide whatever of my said estate shall then be remaining in this trust equally, share and share alike, between my brothers and sisters. In case of the death of any of them before such' division, leaving issue, such issue shall take the deceased parent’s share.”
What passed into the trust estate under this devise was the “rest and residue” of testator’s estate, as that term is used in the will. In that sense the residue is the portion left after the payment of charges, liabilities and particular legacies. Phelps v. Robbins, 40 Conn. 250; Collin’s Appeal, 148 Pa. St. 139, 23 Atl. 1108. The county court’s monthly allowance of $300, a portion of which the widow received, was not a part of the rest and residue within the meaning of the residuary clause of the will, and was therefore not taken out of the trust estate. Crew v. Pratt, 119 Cal. 131. It was an expense of administra
2. Plaintiffs argue that the judgment is not within the pleadings, and that defendants have conceded in their answers that the net rents Collected by Westerfield, as special administrator, and paid over to -Mrs. Wharton as part of the county court’s allowance, should be charged against her. One of the averments upon which plaintiffs rely to sustain this contention is as follows: “That during the period of administration the said Westerfield paid to the defendant, Ida M. Wharton, on account of her allowance as widow, the total sum of $20,700, covering the sum of $300 a month, commencing June 1, 1895, and continuing to the 31'st day of January, 1900; but for the remaining period of 13 months, from February 1, 1900, to March 22, 1902, the said Westerfield failed to pay said allowance of $300 a month, and no part of the income from' the trust estate which accrued during the term commencing with the death of the testator and continuing to March -22, 1902, was paid to the said Ida M. Wharton, excepting as some portion of her allowance may have been paid out of such income.”
The answers contain other admissions of a similar nature; but it should be observed in construing them that Mrs. Wharton was a defendant in a suit in equity to charge her as a trustee ex maleficio. It was alleged in the petition that she had received from the estate $12,000 a year, and that $5,000 a year was sufficient for her support. She denied these averments, and in addition undertook to state by way of admissions the sources, dates and amounts of her receipts. An examination of the answers, however, fails to disclose an admission that any sum received from any source should be charged to her. There is nothing in the record to show that plaintiffs
3. Another point argued is' stated as follows: “The mandate should be construed as it was intended. The meaning of the words, ‘trust estate’, in the mandate, is the real estate in question, whether considered before or after it came into the possession of the trustee,” The pur
4. The decree is also challenged on the ground that Mrs. Wharton is estopped by her conduct in this litigation from denying that the sum in dispute should be deducted from her allowance. In presenting one branch of this question, it is asserted that she admitted in court by motion that a part of the item of $20,700 received by her was derived from real estate which would pass to the trustee under the terms of the will. Plaintiffs in their brief say: “After the district court had completed the accounting and had ascertained the facts incorporated in the decree of June 1, 1908, the defendant, Ida M. Wharton, presented a motion to the lower court, and caused it and the refusal of the court to grant it to be incorporated into the decree. A part of the motion is as follows: And thereupon, on the facts above found, the defendants demand that the court decree the trustee, and his successors in trust, to pay to the defendant, Ida M. Wharton, out of the trust estate the sum of $5,400 for each year, ending on the first day of June, commencing June 1, 1895, that being the date of the death of the testator, less the sum which, during the year, was paid to her from the trust estate by Harry A. Westerfield while acting as special administrator, or while acting as trustee under the express trust, or by John C. Wharton while acting as
This demand was made after 13 years of litigation. According to plaintiffs’ statement, it was made after the district court had completed the accounting and ascertained the facts incorporated in the decree of June 1, 1908. It is- perfectly apparent, therefore, that the demand or admissions were not intended to disclose or concede additional facts. It was intended as an assertion of a legal or equitable right arising from facts already before the court. Both the facts and the law applicable were equally within the knowledge of plaintiffs and defendants. There is no intimation anywhere that plaintiffs were misled, or that they changed their attitude or position in any respect, or that'they were prevented from asserting any right by reason of the language appearing in the demand quoted'. Fraud is not even suggested. No inequitable or illegal relief was procured by the admissions. When acquiescence by plaintiffs would have concluded defendants, plaintiffs refused to be bound by the conduct which they assert is now binding on defendants. Plaintiffs’ hostility as litigants was unabated. They did not terminate the litigation by consenting to the decree demanded by their adversary. Neither the demand for judgment nor the admissions influenced the district court. The decree ignored the demand and did not respond to the admissions. When the cause was remanded, the distinction between a devise of the real estate and a general devise of the rest and residue was directly presented to the court for the first time by defendants. The question was within the issue. The relief sought and obtained by plaintiffs required them to do equity. On a record presenting such a situation, there was nothing to prevent Mrs. Wharton from changing her position in a matter of law, ‘ or from asserting her legal and equitable rights under the residuary clause of testator’s will. In view of the entire history of this case, the conduct mentioned did not constitute an estoppel.
6. Another assignment of error relates to interest on the decree at the rate of 7 per cent, per annum. The decree directs the trustee to pay to Mrs. Wharton out of the trust estate the sum of $55,873.79. It is unmistakably a decree for the payment of money, and interest is
7. On cross-appeal Mrs. Wharton insists the district court erred in refusing to allow her a credit of $6,696.58 for proceeds of personal property bequeathed to her. The bequest on which this credit rests precedes the residuary clause in the will, and is as follows: “I give and bequeath to my said wife, absolutely and unconditionally, all the personal property of whatever nature of which I may die seized and possessed, including notes, mortgages, stocks, bonds, city or county warrants, certificates of deposit, cash on hand or in bank, mining stock, uncollected rents, bills receivable, and in fact all personal property of whatever kind or wheresoever located, wiiich I may possess at the time of my death.” This bequest gave the legatee, Mrs. Wharton, absolutely and unconditionally all the personal property of which testator died seized. Smullin v. Wharton, 73 Neb. 667, 705. The probating of the will, however, was resisted by plaintiffs for nearly seven years. In consequence, the legatee, Mrs. Wliarton, never obtained possession of her legacy. Instead, Westerfield, as special administrator, converted it into money, mingled the proceeds with the income from the real estate, and, with the exception of $1,051.47, expended the mingled funds in the course-of the special administration. By the second finding quoted in the statement of the case it is established that the sum of the net proceeds realized from the personalty was $7,748.05. Out of the funds with which these proceeds had been mingled the sum of $1,051.47 was turned over to the administrator with the will annexed, leaving $6,696.58, for which Mgs. Wharton received no credit in the accounting. This item was de
The reason for the contrary holding of the trial court is not stated in the findings; but plaintiffs justify the refusal to credit Mrs. Wharton Avith the net proceeds of her legacy' on the ground that the personal estate is a primary fund for the payment of debts and legacies. In support of this doctrine reference is made by plaintiffs to sections 67, 68, 93, ch. 23, Comp. St. 1909, and also to the recent case of Schade v. Connor, 84 Neb. 51, where the folloAving language is quoted by this court from Sutherland v. Harrison, 86 Ill. 363: “In the administration of assets the personal estate is a natural and primary fund for the payment of debts and legacies, and, as a general rule, must first be exhausted before the real estate can be made liable, and it Avill not be exonerated by a charge on the real estate, unless there be express words, or a
The rejected credit of $6,696.58 should have been allowed and added to $55,873.79, the amount of the decree. For the purpose of correcting this error, the judgment of the district court is reversed, at the costs of plaintiffs, and the cause remanded to the district court, with directions to enter a decree directing John C. Wharton, trustee of the express trust created by the will of George K. Boggs, deceased, and his successors in trust, to pay to Ida M. Wharton out of the trust estate the sum of $62,570.37, with interest from August 9, 1909.
Reversed with directions.
Dissenting Opinion
dissenting.
I cannot, for the reasons hereinafter stated, concur in the opinion of the majority in this case. The record is replete with proof that, until the last hearing in the district court, the litigants treated all of the estate referred to in the fifth paragraph of Mr. Boggs’ will as the rest and residue of the estate. The transcripts filed in this court disclose that Mr. Boggs died June 1, 1895; that Westerfield acted as special administrator until he quali
It seems to me that the argument concerning Mrs. Wharton’s right to her widow’s allowance in addition to the support provided for in the will, and in reference to the fund out of which there should be paid the expense of administering the estate, is immaterial and irrelevant at this stage of the case, and was likewise immaterial in the district court. This cause has never been remanded generally, but in each instance the judgment and mandate directed the district court to determine a particular issue or to do and perform definitely described acts. The cause was last remanded with instructions to the district court to enter judgment in Mrs. Wharton’s favor for $5,400 per annum since Mr. Boggs’ death; less such sums as she may have received from the trust estate. No other subjects were before that court for adjudication. In attempting to adjudicate any other fact or right, it would review and revise the judgment of this court. Not only did the judgment of this court dispose of all things presented hostile thereto, but it foreclosed as well every argument and proposition that might have been presented or interposed to mitigate or mould that judgment. West v. Brashear, 14 Pet. (U. St) *51; Sibbald v. United States, 12 Pet. (U. S.) *48; Hill v. Hoover, 9 Wis. 12; Pierce v. Kneeland, 9 Wis. 19, 25; Piper v. Sawyer, 78 Minn. 221. So it seems to me this court adjudged and determined that whatever rents and profits of the estate described in the fifth para
What has been said applies with redoubled force to so much of the opinion of the majority as grants Mrs. Wharton relief upon her cross-appeal. The subject matter of that appeal is foreign to the things referred to iiy the mandate of this court, and Avas not before the district court at the last hearing.