Von Holt v. Williamson

DISSENTING OPINION OF

QUARLES, J.

I concur in the conclusion of the majority that there is no implied gift of the income (accruing subsequent tq *207the death of the widow and sister-in-law of the testator) to the daughter, Mrs. Williamson. I also' concur in the conclusion that there is no intestacy as to such income.

I am unable to concur in the conclusion that the beneficial interest in the trust property, including income, is not fully disposed of by the will, for which reason a resulting trust arises in favor of Mrs. Williamson, the daughter, as to such income. In my opinion the testator intended to conserve the trust property, the corpus as well as the income, and for that purpose provided that after the death of his wife that only so much of such income as might be necessary should be used to support, maintain and educate his daughter, Mrs. Williamson, until she should attain the age of twenty-one years, excluding the idea that she should further participate in such income. The fourth paragraph of the will shows that the testator intended that the trust property, including the income, should be held until the death of his daughter and then distributed to her children surviving her if they then be of age, but if not adult they should be supported and maintained out of the income until of age when the property (corpus and income) should be distributed among them. In my opinion, both by operation of law and intent of the testator, found in the will, such portions of the income as are not specifically directed to be otherwise applied follow the corpus of the trust property and were intended by the testator to be finally disposed of with the corpus of such property.