Omaha daily bee. (Omaha [Neb.]) 187?-1922, 1906-02-10
SUPREME COURT SYLLABl

The following opinions were filed January
g. 1905:
1859. Sullivan against Wharton. Appeal,
Douglas. Reversed and remanded with di-
rections. Holcomb, c. J.
B., a short time before his death. which
he knew must soon occur, devised and
bequeathed to his wife Ohey both being
advanced in years and childless) certain of
his real estate and all his personality TO
have and to hold absolutely and uncondi-
tonally in her own right forever The re-
mainder of his realty, being the major por-
trustee. upon the following trusts: ~ To
pay out of same the expenses of maintain
ing the trust. (2l To deposit 10 the credit
of his wife for her own use the net in
wife, in writing, to sell any part thereof
and deliver to her for her own use abso-
lutely the proceeds or otherwise invest the
same in the name of the trustee for the
purposes therein specified as she may
direct. CD Upon the decease OF the wife
shall then be remaining between the
brothers and sisters of the testator manning
them) share and share alike. and the issue
of deceased brothers and sisters, If any.
Before the will was executed the wife
was called into the room and it was read
over to her, the testator asking IL II suited
her, and she answered in the affirmative.
He then made certain oral requests and
directions with reference to his estate, the
substance being that he had placed her
(his wife) in comfortable circumstances 60
that she would not want for anything;
that he wanted her 10 live as they were
living, and at the end of every year to
divide the surplus among his people; that
her people We're in good circumstances. but
his people were poor and that he wanted
her 10 make a will so that at her death
his estate would go to his brothers and
sisters; that If she wanted to give to
charitable purposes, say five or ten thou
sand dollars, that would be all right, but
that he wanted the bulk of his estate. his
entire estate TO go 10 his brothers and
sisters To all this she expressed her as
sent and entire Willingness to carry out
the testators wishes. The wife, shortly
after the execution of the will, expressing
fear that II would be contested, the hus-
band by instruments of conveyance and
assignment, absolute and unconditional
In terms, transferred to her substantially
| the terms of the will. After the death OF
the testator the wife refused TO comply
with the parol requests and directions made
AT the time OF the execution of the VIII and
assented TO by her, and disaVowed their
binding and obligatory character on her,
asserting that she had an uncontrolled dis
erection as 10 whether any of the property
or the income therefrom passing by the will
| should go TO tho collateral heirs of the
became the general owner OF the property
| embraced In the express trust because OF
the power given to ALLEVIATE and acquire
iegal ute thereto and to the proceeds
thereof IN her own right, that construc-
i've trust arose in favor OF the collateral
| heirs as to all such property, and that the
wife should be charged as a trustee eX-
! malihcio GU that her interest in such prop
erty, the proceeds thereof and the net in
|
reasonably necessary and required 10 sup
port and maintain her in the comforts and
style OF living to which they had been ac-
customed, and 20 give not to exceed $40, 90
Tor charitable purposes, the equitable title
70 ana interest in the remainder passing "a
the collateral heirs named in the will, and
70 be distributed between them according "a
US terms and the parol requests and direc-
lions or the testator; go that the property
70 which the constructive trust attaches Is
sufficiently definite and certain as to rem
der the trust capable of execution and en-
forcement and that our former holding "a
the contrary should be modified accordingly
1887 Kupke against Polk. Appeal and en-
ror from Cass. ON rehearing former Judg-
ment vacated, judgment Of, the lower court
reversed and cause rcmanded Sedgwick, j.
When the trial court in an action in co
uity makes special findings of fact and no
general finding and the evidence Is not pre-
served, the sole question for this court on
appeal is whether the judgment Is supported
by the pleading ana the special findings.
IL in such case there Is no finding upon a
material issue. that Issue must upon appeal
be determined against the party on whom
the burden OF establishing such issue rested