Smith v. Lorenz

BRITT, C. Appeal by three married daughters of Henry Lorenz from the order or decree of the court below making final distribution of the estate of their deceased father. The decedent left a will, by the terms whereof he gave to his surviving wife an estate for her life in all the property, real and personal, of which he had power of testamentary disposition, with remainder over to his ten children in shares and upon conditions stated in the will. The provision for appellants, so far as material to be stated here, was as follows: An undivided one-tenth of the remainder upon termination of the life estate was given to F. J. Lorenz, eldest son of the testator, “to hold in trust,” such is the language of the will, “for my daughter Christina Smith, such trust to continue during the life of her husband”; the like disposition was made in favor of each of the other appellants by name; in case of the death or disability of said F. J. Lorenz, then John N. Lorenz, another son pf the testator, was appointed trustee in his stead; the trustee was authorized to sell and convey such portions of the trust property as in his judgment the interests of the beneficiaries of the trust might require; he was also empowered to pay out of the profits of the trust property, or interest derived therefrom, such sums of money to said beneficiaries “as he deems necessary, advisable, and proper,” and to expend such amounts out of the principal of the trust as the proper court might adjudge necessary to be expended for their support or the support of their children.

Said F. J. Lorenz was named executor of the will, and upon probate thereof he received letters testamentary, and has administered the estate. Pending the administration, viz., .on November 35, 1895, said Christina Smith and the other married daughters of the testator, and said F. J. Lorenz and John N". Lorenz, executed a written instrument, which is recited in the decree appealed from, whereby they mutually agreed that it should be provided in the decree of distribution of the estate, when thereafter rendered, that the trustee for the said married women “shall pay the profits or interest on the trust fund of each of the said parties,” naming the appellants, “to them semi[497]annually, instead of paying the same to them as deemed necessary, advisable, and proper by the said trustee.” And, accordingly, the decree in question was framed by the court so as to assign the shares of appellants in trust pursuant to the terms of the will, except that it commands the trustee to pay the profits or interest of the trust property to the beneficiaries as agreed in said instrument of November 25, 1895, and deprives him of any discretion in that behalf.