Olive v. Olive

Supreme Court of Iowa

Olive v. Olive

90 N.W. 827, 117 Iowa 383

DecidedMay 31, 1902

StatusPublished

This text of 90 N.W. 827 (Olive v. Olive) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Olive v. Olive, 90 N.W. 827, 117 Iowa 383 (iowa 1902).

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Opinion

Waterman,. J. —

As appellee has not seen fit to argue the case in this court, we shall enter into no extended discussion of the issues presented, but content ourselves with announcing our conclusions. The case is presented on the theory that the widow is entitled, if necessary for her support, to the principal of the estate; and we shall accept that construction of the will, without question, for present purposes. While the widow was entitled to support, the trustees were vested with 'a discretion in the matter. The widow was not necessarily to have every demand she made allowed. Others besides the widow were interested in the estate. If plaintiff had already received-the large amount stated in the answer, we think it was most proper for defendant to try and ascertain what she had done' with it before joining in a sale of the last piece of property owned by the estate. If she was using estate funds for other purposes than satisfying her reasonable personal needs, her demand for more money should have been refused. The answer set -up facts which fully justified, defendant in [386]*386refusing to join in the sale, at least until the widow had made a showing of the disposition made by her of the money already received. It was a case upon which testimony should have been heard. Aside from these considerations, it is very doubtful, to say the least, whether a court has a right to remove a trustee in whom a discretion is vested, for a mere failure to act. Lewin, Trusts, 836, and cases cited. As this point is not discussed by counsel, we suggest, rather than decide it.

For the reasons given, the judgment is reversed.

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Waterman,. J. —

As appellee has not seen fit to argue the case in this court, we shall enter into no extended discussion of the issues presented, but content ourselves with announcing our conclusions. The case is presented on the theory that the widow is entitled, if necessary for her support, to the principal of the estate; and we shall accept that construction of the will, without question, for present purposes. While the widow was entitled to support, the trustees were vested with 'a discretion in the matter. The widow was not necessarily to have every demand she made allowed. Others besides the widow were interested in the estate. If plaintiff had already received-the large amount stated in the answer, we think it was most proper for defendant to try and ascertain what she had done' with it before joining in a sale of the last piece of property owned by the estate. If she was using estate funds for other purposes than satisfying her reasonable personal needs, her demand for more money should have been refused. The answer set -up facts which fully justified, defendant in [386]*386refusing to join in the sale, at least until the widow had made a showing of the disposition made by her of the money already received. It was a case upon which testimony should have been heard. Aside from these considerations, it is very doubtful, to say the least, whether a court has a right to remove a trustee in whom a discretion is vested, for a mere failure to act. Lewin, Trusts, 836, and cases cited. As this point is not discussed by counsel, we suggest, rather than decide it.

For the reasons given, the judgment is reversed.

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90 N.W. 827, 117 Iowa 383, Counsel Stack Legal Research, https://law.counselstack.com/opinion/olive-v-olive-iowa-1902.