dissents.
The following opinion on motion for rehearing and to modify mandate was filed June 7,1907. Sustained in part:
*706Letton, J.The appellee has filed two motions. The first one alleging that the court has not considered or decided the issue of res judicata in this case, and urging that the case be reconsidered upon this point. As a second defense it is alleged in the answer that, in the contest of the will, Mrs. Wharton was a party as proponent, and that the plaintiffs in this suit were parties contestant, objecting to the probate of the will and asking for affirmative relief, and that it was alleged by the contestants that, prior to the making of the will, it Avas Mr. Boggs’ Avish and intention to give his wife only a small portion of his property absolutely, and the balance for her natural life, and at her death to descend to the plaintiffs, and that she should annually divide between herself and them the net income from the estate, and that Mrs. Wharton did by. undue influence induce the testator to make the will offered for probate contrary to what he desired, and for the purpose of excluding them from any share in his property. The answer in this case further alleges that after a trial of the issues it was finally adjudged that the Avill Avas valid; that the testator was competent to execute the same; that no undue influence had been exercised, and that all the objections should be overruled and the will admitted to probate. The appellee now contends that the judgment admitting the will to probate is a bar as to l„e matters set forth in the answer in the will contest to establish undue influence, which are the same facts relied upon in this case to establish the constructive trust; and it is said that the county court in the will contest had full power to grant the relief demanded by the plaintiffs in this case, for the reason that it had equity powers. It is further said that the former judgment is an adjudication that the absolute and unconditional gifts made to his wife were made voluntarily; that the testator was not induced to make the same by any fraud or undue influence of the Avife, and that these acts and provisions are in all respects valid. *707In the contest case, however, the plaintiffs sought to set aside the will entirely, in order that they might acquire the estate by the laws of inheritance; while the purpose of this action is directly contrary in that it assumes and adopts as its basis the validity of the will, but seeks to impress upon certain of the property conveyed by the will to Mrs. Wharton a trust for the benefit of the plaintiffs. The relief sought in this case is inconsistent with the theory upon which the Avill Avas contested. In the probate court the plaintiffs could not have said Avith one breath that the will Avas invalid because it Avas procured by fraud and undue influence, and Avith another that the Avill was valid, but a trust Avas impressed upon certain of the property conveyed by it. It is unnecessary to decide whether the present action could Imwe been maintained in the first instance in the county court. It could not have been maintained a.t the same time that the appellants were contending that the will Avas void, and that they took the property as heirs at laAV. The matters given in evidence in the contest proceedings Avith reference to the circumstances surrounding the making of the will, which were urged as tending to shoAV undue influence, while insufficient to establish this fact, Avere yet material to consider .upon the theory that the Avill AAras valid, and that a trust ex maleficio Avas impressed upon the property, and the decision establishing the validity of the Avill is not conclusive upon the question Avhether or not a constructive trust was raised.
In the opinion of this court upon the contest of the will it is said:
“He (the testator) had asked his wife, and she had agreed, to give Avhatever of the income she did not need or use to his relatives, for Avhom he made no immediate provision, and had also asked her to make a will in their favor. * * * Where undue influence is charged, the question is, in substance, whether or not the testator acted freely and upon his own judgment or under some species of coercion or imposition.” Boggs v. Boggs, 62 Neb. 274. *708In the present case the question is whether he was led to exercise his judgment and free will in her favor, relying upon her promises to do for his relatives that which, but for his reliance upon her promise, lie would himself have; done in his will. The first decision determined that the will of the testator was not overcome by the will of his wife. The present case determines that his action was so far dependent upon her promises that she is constituted a trustee to carry out those1 promises. Manifestly these conclusions are not inconsistent with each other.
By the second motion the appellee urges the court to interpret the opinion, and to modify and make definite and certain the directions to the district court, in substance, so as to direct that the maintenance of Mrs. Wharton according to the testator’s wishes be charged upon the income and corpus of the trust estate devised to .Westerfield, and also to charge the legal expenses incurred by Mrs. Wharton in sustaining the will of the testator, and in defending this action, upon the same trust estate, and to take an account necessary to make such provisions. While we think that the last opinion filed in this case sufficiently evidences the intention of the court,, still there are some expressions used which perhaps tend to ambiguity, and which may not be as clear as may be desired. We therefore deem it well to amplify and, if possible, make more specific and definite our views as to the duty and liability of Mrs. Wharton with reference to the proceeds of the property impressed with the trust.
We think it is clearly pointed out in the opinion that, after the conversations occurred upon which it is held the constructive trust arose, the testator removed from the operation of the trust certain specific property of which he made an absolute gift to his wife, free and untrammeled by any restrictions or limitations of any kind or nature whatsoever. This 'included the home and other real estate and personal property. With this property so conveyed the oestuis que trustent have no concern whatsoever. They have no interest in it. It belongs solely to Mrs, Wharton. *709Both, the property itself and the income from it are hers to do with as to her seems best. The remaining property was placed in trust with Westerfield, with the right to his wife to use the income from it, or if necessary the corpus thereof, for her maintenance and support during her life, in her accustomed style, or to give a part to charity, and the annual surplus income after this was done, and the property in trust remaining at her death, was to be divided among his relatives. It was from the property devised to Westerfield in trust that the wife was to obtain the income required to maintain her in the style and comfort she had been accustomed to, and not until this had been done did any right exist on the part of the plaintiffs to share in the income or in the fund. It is urged that it was Mr. Boggs’ intention that the income of all the property should be used, so far as necessary, for her maintenance, and that the surplus should then go to the heirs, but this conclusion is incompatible with the idea of the subsequent absolute conveyance to the wife of the property not in the Westerfield trust. It was evidently Mr. Boggs’ intention to make assurance doubly sure, by giving his Avife for her maintenance, first, the income from the trust estate, and, if that were insufficient, then the body of that estate to the extent necessary, leaving her OAvn absolute property which he conveyed to her to be untouched unless the trust estate were exhausted. We think also that it Avas clearly his intention that the property used as a home should be preserved for that purpose, and we think it would be a violation of the testator’s intention if the homestead were disposed of or vacated, and a sufficient amount taken from the income of the trust estate to provide another residence. These conclusions of course are to be taken together with the language in the second opinion, and are simply explanatory of AAdiat.has been said therein.
Mrs. Wharton’s reasonable expenses in the litigation in which the will was established should be paid out of the whole estate taken under the will, including taxable costs and reasonable attorneys’ fees. The taxable costs in this *710case should be adjudged against Mrs. Wharton personally, each party paying their own attorneys.
The motion of the appellee is sustained so far that the case is remanded, with directions to the district court to take an account of and ascertain what sum per annum is sufficient to support and maintain the appellee, Ida M. Wharton, using the family homestead, according to the style of living to wdiich she was accustomed at the time of the death of the testator, and to charge the payment of the same annually during her life upon the income of the trust estate devised to Westerfield, and upon the corpus thereof if the income is insufficient, and according to the conditions of said trust; second, to charge the said appellee as trustee in trust, to pay and distribute annually all such surplus income from the trust estate, if any there be after providing for the maintenance of the appellee as aforesaid, and such gifts to charitable purposes as she may desire to make from time to time, not exceeding $10,000 in all, to the brothers and sisters of the testator, share and share alike, the issue of deceased brothers and sisters, if any such issue, to take the share of the deceased parent; third, for such other accounting and decree as may be necessary to carry fully into effect the provisions of the constructive trust declared to exist, and of the trust declared by the will in Westerfield, and according to the views expressed in the opinion by Chief Justice Holcomb, and of this opinion.
Judgment accordingly.