Heighe v. Littig

Yellott, J., delivered the opinion of the Court. From the bill of complaint and the proof embodied in the record it appears that Charles H. Ross departed this life on the 20th day of January, 1861. Prior to his decease, and on the 21st day of November, 1860, his last will and testament was executed, to which was subsequently added a codicil on the 29th day of December, in the same year. By the terms of these testamentary dispositions of his property, after making provision for the payment of debts and some small legacies, he gav.e all the rest and residue of his estate to his wife and her successors, in trust for her sole and separate use and benefit during her natural life, with a proviso that if any one of his sons should attain the .age of twenty-one years, during the life of his mother, he should be paid the sum of $5,000 out of the estate ; this proviso being applicable to each son who should, reach that age while his mother was living.

And ³⁰³ an annual payment of three hundred dollars was directed to he made to each daughter, who should marry during the life of her mother. After the death of his wife the testator gave one-sixth of the trust estate thus created, to each one of his six children, the sons each to have $5,000 at the age of twenty-one years, and the remainder of the sixth at the age of thirty years. It was provided that the daughters should receive the income from their respective portions of the estate, thus divided, during their lives, after which the principal was to go to their children; and in the event of there being no children, then to their surviving brothers and sisters. If any of the sons died before receiving the whole of the share or shares thus assigned the remainder was to go to the surviving brothers and sisters.

The eldest son of the testator died intestate, unmarried and without issue, in the year 1880. He had not, at the time of his death, attained the age of thirty years. The third son died soon after the testator, being then an infant, unmarried, without issue and intestate. The four children of the testator now living are Mrs. Heighe, Mrs. Littig, a daughter Fannie, at this time an inmate of an insane asylum, and John R. Ross, a resident of Baltimore County.

Clara A. Ross, the widow and executrix of said testator, died in May, 1881. She left a will by which she bequeathed all she possessed, with the exception of some small legacies, to her son John and her two married daughters ; and by the terms of said will constituted her said son John her executor. The complainants are manifestly entitled to the relief asked for in their bill of complaint. It is .necessary that a trustee should he appointed to take charge of the estate and to completely execute the trust created by the will of said Charles R. Ross.

They have also a right to ask that the defendants account with them: that the ³⁰⁴ inventory be corrected; and that tbe exact amount of tbe ■corpus of the estate be, as far as possible, ascertained and established. The only remaining question, to be determined by this Court, is in relation to what should constitute the corpus of the estate. This question was ably argued by learned counsel on both sides, but does not seem to present any very great difficulty. Mr. Ross, the testator, bequeathed his property to he held by his wife in trust for her own use and benefit, during the term of her natural life.

She was therefore entitled to the income of the estate; for-, if it were otherwise, the bequest would have been nugatory and unproductive of benefits. As she had a life estate, she was entitled to the whole income in the absence of any restrictions in the will. She could not, however, appropriate any portion of the capital to her own use. Just before his death, Ross had entered into a co-partnership which was to continue for three