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AZSG
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<br />237
<br />rivEfs UL WOMEN HOUND ME L
<br />42854- KLOPPS BARTLETT CO.. PR INYING. LITHO6RA ?HIVG.STATIONERY; Ott, AHA
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<br />estate, the sum of '52400.00 for each year ending on the first day of June, commencing June,
<br />1, 1805, that being the date of the death of the testator, less the sum .�rhich, �1uring the year
<br />i.ras ,-paid to her from the trust estate by Barry A.Nesterfield chile acting as special adminis-
<br />trator or while acting txustae, under tYierex�ress trust, or by John C.Wharton -.rhile acting as
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<br />trustee, :vith interest on the differance thus found at the rate of 7, per annum; but the court
<br />refuses to so decree, and the court holds, as matter of lair, that the defendant Ida 3M.Whharton
<br />is not entitled to recover from the trust estate any part of the sutra of ,53 400.00 for any prior
<br />year, for the reason that the evidence fails to show that during any such year she actually
<br />expended for her support more than she received during the ;rear from the trust estate; to .shish
<br />refusal and ..:ruling of the court the defendants John C.Wharton and Ida M.+Vharton each except.
<br />And on the facts above found the defendants de-iand that the court decree the trustee,
<br />and his successors in trust, to pay to the defendant Ida 21.Wharton, out of the trust estate.
<br />12:15/135 of the full sum of $15 840.00 :vith interest thereon at the rate of 75111 per annum from
<br />the 9th day of October, A.n.1907, for her reasonable expenses incurred in the litigation in
<br />shish the ,iill :Eras established; but tre court refuses to so decree and the court holds, as mat -
<br />ter of law, that the said Ida 1M.Nharton is entitled to be reimbursed for no more than 125135
<br />of ,`'�3 of the sum of I`,,',l5, 500.00 ;paid for the service of her lawyers, and 1 ^5135 of the sum of
<br />.340.00 raid for expenses incurred by her said la-,:ryers; to which refusal and ruling by the
<br />court the defendants Id.a .S. dharton and John C.Uharton each except.
<br />And the plaintiffs der.and that in accordance Jith tho decision and mandate of the supreme
<br />court, this court now insert in this decree a finding, order and decree as follo,,1s:
<br />At the time of the execution of the said will of George H.Roggs, deceased, after the rill
<br />had been prepared, and immediately before the signing of the same by the test-tor and the attes-
<br />Cation by the vitnes yes, the said George H.Roggs stated to t.-.e said Ida ,1.Boggs that ne nact
<br />placed her in comfortable circumstances,, so `_hat she •rould not ,,rant for anything; that he wanted'
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<br />her to live as they Isere living, and at the end of evory ;rear to .livide the ,urplus among his
<br />people; that her people ,,ie-re in good circum, tances, but his people ,vere poor; and that he :{ranted;
<br />her to make a ,:ill so that at her death his estate would go to his brothers and sisters; that
<br />if she wanted to ,3ive to ch^_ritable r"ur,-)c,ses say ')5.000. to x10, 000. that would be all right,
<br />but that he ,:ranted the bulk of his estate, his entire estate, to go to his brothers and sisters
<br />To all of this s. he expressed her assent and entire ;,,illingness to carry out the IwisheB of the
<br />said George :.Fog gs. Aftar the death of the said George ri.Roggs, the defendant, Isla9.
<br />W iarton refused to comply aith the parol requests and directions rude at the time of the exec-
<br />ution of the ;gill and assented to by her, and disavo v*ed their. .Andir_g and obligatory character
<br />on her asserting that she had uncontrolled discretion as to ,,ihethar any of the property or the
<br />the income therefrom, passing by the sill, should go to the collateral heirs of the testator.
<br />And the court finds that thereby a constructive trust arose in favor of the collateral heirs
<br />of the said George TTI.Roggs, as to all the property clvised by the said :will to Harry A. ester-
<br />field trustee, and as to all the income which she - houdd receive from the said trust estate,
<br />and as to all the proceed, of the sale of any of the real estate inclidBd therein, and that the
<br />defendant, Ida I4.71'_�arton should be chlarged as a trustee ex rlaiAficio, as to all the title
<br />to the income of the said real estate and -t-be proceeds of the sale of any thereof, ; ,Lnd 4L, -hat her
<br />interest in such net income and the proceeds of the property, was limited to the amount reaso-
<br />nably necessary and required to support and maintain her in the comfort and style of living to
<br />vrhich they had been accustomed and to,. ive not exceeding '10,000.for charit ^ble purposes;
<br />that the e Editable title to and interest in the retnu:incler passed to the collateral heirs named
<br />in the :will, and to be distributed among them according to its terms and the parol reryuists
<br />and directions of `he testator; and that this conistructive trust ;applies and is limited to the
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