Rothschild v. Weinthel

Dissenting Opinion.

Townsend, C. J.

The writer cannot assent to the majority opinion. The fifth item of the will provides that the executors “shall first pay out of the revenues therefrom all taxes, insurance, repairs charged against the real estate described in Item Third of this will, and the balance of said revenues they shall pay to my said wife.”

*98Now item third creates a life estate. Testator’s wife was therefore bound to pay “all taxes, insurance, repairs charged against” this real estate. Testator’s words in this behalf must be given some meaning. By directing his executors to do something which the life tenant was required in law to do, and by thus striking a “balance,” testator indicated his intention that this should be the only net balance struck. That the corpus of the estate will be slightly diminished is not appalling. It is certainly not unnatural that testator should give enough so that his wife might have an estate of her own.

The case of Wilson, Admr., v. White (1893), 133 Ind. 614, 33 N. E. 361, 19 L. R. A. 581, is distinguished in the principal opinion and stress is laid on the words “absolute property.” To the writer the words of the will in the present case are as strongly, or even more strongly, indicative of “absolute property” than those in the Wilson case. When testator struck a balance by his words, he absolved the fund from all other charges. The writer agrees with the law contained in the cases cited in the principal opinion, but disagrees with the manner of its application to the present case.

The judgment of the trial court should be affirmed.

Travis, J., concurs in the dissenting opinion.