Heberle v. Trs. Under Will

SHAW, J.

This is an appeal from a decree of distribution. The deceased left surviving, as his heirs at. law, the appellant, Jacob Heberle, who was his brother, the children of a deceased brother, Martin Heberle, and the children of a deceased sister, Anna Maria Heberle Mootz. He died testate and the controversy causing this appeal arises over the construction of his will.

The will gave all of the estate to two trustees, with specific directions as to its disposition. After providing for the investment of twelve thousand dollars and the payment of the income thereof to Jacob Heberle, or to his use, during his life, and for its disposition after his death, and specifically disposing of a certain lot of land, the following clause appears:—

“Eighthly,—

“That my said trustees shall, within a reasonable time after the distribution of said estate to them, convert all of the residue and remainder of my said estate into cash and pay the same to my said sister, Anna Maria Heberle Mootz, and in case of her death, prior to her receiving said residue, then that the same shall be divided equally among all of her children, except the said Eva Dickhof, share and share alike.”'

A subsequent clause directed the trustees to convert the residue into cash “if they can do so within one year after the said property is distributed to them, . . . but in case of a low market or where loss might ensue by the conversion of said property into cash, then they may take such further time as may be reasonable—it being my intent and purpose that my said estate shall be made to bring a reasonable amount for distribution to my said sister or her children.” It further provided that the trustees should administer the trust under the supervision of the court having jurisdiction of the administration of the estate.

The estate was distributed to the trustees to be disposed of by them as provided in the will. Anna Maria Heberle Mootz

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died prior to the death of the testator. The trustees were directed to pay over the residue, when converted into money, to her children and grandchildren, except Eva Dickhof, the word "children” being construed to include grandchildren. The appellant claims that the trust as to this residue is void, and consequently, that said property should have been distributed to the heirs at law.