Mittendorff v. Dasher

California Court of Appeal Jul 31, 1942 No. Civ. 13653Published

Before: White

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Holding. The court held that a testamentary trust created for the widow's support entitles her to the net income of the estate from the date of the testator's death, rather than from the date of distribution to the trustees.

Issues

Whether a widow is entitled to trust income from the date of the testator's death or from the date of distribution to the trustees.
Whether the trial court had jurisdiction to determine the amount of net income and order its payment to the widow prior to distribution to the trustees.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Therefore we are persuaded that respondent’s right to the income derived from the trust property has relation to the date of the testator’s death, and should commence therewith.”

“Manifestly, the decree of the court simply ordered the trustees to do that which they were enjoined to do under the provisions of the will and the requirements of their office.”

WHITE, J.

This appeal presents a question of construction of the last will and testament of N. S. Dasher. The testator died on June 24, 1937, leaving a will wherein he nominated his wife, Gertrude A. Dasher, respondent herein, and his niece, Edith Mittendorff, appellant in the instant proceeding, as executrices. On July 1, 1937, the last-named executrix executed a renunciation of her right to act, and the wife was appointed executrix on July 28, 1937. An inventory and appraisement was filed on April 15, 1938. On June 17 of the same year Gertrude A. Dasher petitioned the court for a widow’s allowance of $250 per month from the date of the testator’s death to June 17, 1938, and an order for such allowance was made on July 7. On April 28, 1941, the executrix filed her second and final account and petition for distribution. To this account Edith Mittendorff filed her objections. It is from certain portions of the order settling the second and final account and directing distribution under the will that this appeal is taken.

After making certain bequests in his will, the decedent provided that all of the rest, residue and remainder of his estate be given, devised and bequeathed unto Gertrude A. Dasher, his wife, and Edith Mittendorff, his niece, as trustees, and that the net income received and derived from the trust estate

[723]

should be turned over to decedent’s wife, Gertrude A. Dasher, for her own individual use and benefit during her lifetime.

The trial court found: “That the trust created and provided for under and by the terms of Articles Sixth and Seventh of decedent’s said will is a trust for the benefit of the widow of said deceased, and that Gertrude A. Dasher, widow of said deceased, as a life beneficiary of said trust, is entitled to receive and to have paid to her the total income received and realized from decedent’s estate during the period of administration, after deducting the moneys expended for taxes and maintenance of the property of said estate.”

By its order settling the second and final account and directing distribution under the will, the trial court decreed:

“. . . 5. That Gertrude A. Dasher, as the widow of said N. S. Dasher, deceased, is entitled to receive and to have paid to her the sum of $2,784.48 on account of income received from the estate during the period of administration, and the trustees of the trust fund created and provided for under and by the terms of Articles Sixth and Seventh of the last Will and Testament of the said N. S. Dasher, be and they are hereby instructed to forthwith pay over and distribute to the said Gertrude A. Dasher, out of the trust estate as soon as the same shall have been distributed to them as such Trustees, the said sum of $2784.48.

Mittendorff v. Dasher

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WHITE, J.

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