Estate of Miller

STURTEVANT, J.

This is an appeal by Mary Agnes Miller, the surviving widow of Hugh Miller, deceased, from the decree settling the final account and distributing the estate of the decedent.

The decedent left a will which creates a trust as to all of his property. It names two of the decedent’s brothers, Robert B. and George R., and a third person, Irvine P. Aten, as trustees of the trust, and it requests that those same persons be appointed as executors. It provides that no bond be required of any one of them, either as executor or trustee. It authorizes those three “. . . in both their capacities as executors and trustees, to manage, control, sell, lease, invest and reinvest any of the assets . . . during the time of said executorship and trusteeship.” Except as we will presently note, the creation of a fund is not mentioned in the will. Some of the large properties of the decedent consisted of holdings in two companies called respectively the Barton Vineyard Company and the Startup Orchard Company. The latter company does business and has an orchard at Startup, in the State of Washington, and one of the trustees, Robert B. Miller, resides at the orchard. It is but reasonable to assume that he is in charge. There are several expressions in the will to the effect that the decedent wanted said properties managed by his trustees and not by anyone else; that he did not want the management, or any part of it, to fall on his widow; and that he did not want his interest disposed of except that those

“

. . . companies are fully liquidated.”

[440]

It is conceded that the will creates two other trusts. The decedent desired that $50,000 be paid to another brother, -John, in trust for John’s children. He desired that $30,000 be paid to Robert in trust for Robert’s children. He makes it clear that said sums are not to be paid by the executors but by the trustees because the said sums were to be paid in ten equal payments, one on October 24, 1929, and one each year during the nine following years. Interest as a charge against the decedent or against his estate for the use of money is not mentioned in any place in the will. Among other things the decree directs: “To pay to John Miller, brother of decedent, the sum of $50,000.00 in trust for the benefit of his children, and to pay to Robert Miller, brother of decedent, the sum of $30,000.00 in trust for the benefit of his children, and the said trustees are directed to now set aside sufficient funds to pay the said legacies, and said legacies shall be paid in annual installments over a period of ten years, and the first payment shall be made to John Miller on the 24th day of October, 1929, in the principal sum of $5,000.00, and the first payment shall be made to Robert Miller on the said 24th day of October, 1929, in the principal sum of $3,000.00, together with the interest upon or the earnings of said fund to such date, and said interest shall be paid in proportion to their said respective bequests, and said Trustees shall further pay to said John Miller and Robert Miller on the 24th day of each succeeding October, until said sum is exhausted the said sums of $5,000.00 and $3',000.00, respectively, together with the increment on said fund in their said respective proportions, and such annual payments shall be continued until the said legacies have been fully paid, the said moneys to be so paid to the said John Miller and Robert Miller, as Trustees, with the direction that they expend these moneys solely for the benefit of their children in such manner as they in their discretion shall direct, with the recommendation that the income thereof be applied for the children’s education and advancement, and that the capital fund be paid over to them in equal proportions.”