In Re Ewer

SHAW, J.

The decree of final distribution of the estate of Warren B. Ewer, deceased, recited “that in accordance with the provisions of the last will and testament of said deceased the said residue now remaining in the hands of said executor should be distributed as follows: To Ora S. Ewer, widow, $5,000.00. To Eliza B. Ewer, surviving daughter, $500.00 ... To Chas. E. Naylor, as trustee for Eliza B. Ewer, $25,000.00.” The decree then provided “that the residue of said estate hereinabove particularly described and mentioned be, and the same is hereby distributed as follows: To Ora S. Ewer, widow, $5,000.00. To Eliza B. Ewer, surviving daughter, $500.00. To Chas. E. Naylor, as trustee for Eliza B. Ewer, $25,000/00.”

The will of Warren B. Ewer bequeathed twenty-five thousand dollars to Chas. E. Naylor on certain trusts therein described, and provided that upon the death of Naylor the Mercantile Trust Company should succeed him as such trustee. Naylor afterward died and the Trust Company was substituted as his successor. Eliza B. Ewer, the beneficiary named in the decree, died on January 4, 1917. The appellant, Jesse L. Healy, was thereupon appointed special administrator of

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her estate. After her death the Trust Company filed its final account and asked that the trust be closed and that the

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of the estate be ordered distributed to the party entitled thereto. Upon the hearing of this account and petition Healy, as administrator of Eliza B. EVer’s estate, appeared and asked distribution of the balance remaining in the hands of the trustee, on the ground that the decree of distribution vested the title thereto absolutely in Eliza B. Ewer, and that upon her death it descended to her heirs and became a part, of her estate. Alfred Ewer also appeared and claimed that by the terms of the trust he was entitled to distribution of the said residue remaining in the hands of the trustee. The court held in favor of Alfred Ewer and ordered that the residue be paid over to him by the trustee. From this order Healy appeals.

It is the contention of the appellant that the direction in the decree of distribution of the estate of Ewer to distribute twenty-five thousand dollars to Chas. E. Naylor, “as trustee for Eliza B. Ewer,” is unconditional and positive, and that no other person is thereby given any interest in the property; that the beneficial interest and equitable title vested in Eliza B. Ewer accordingly, in consequence whereof at her death it descended to her heirs. The respondent claims that by virtue of the reference in the decree to the last will of Warren B. Ewer the court may look to said will to determine the nature of the trust upon which Naylor was to hold the money distributed to him.