ON PETITION FOR REHEARING. In their petition for rehearing the appellants insist that there is no evidence that Lydia's income was ever other than it was at the time of the writing of the will in question. The evidence does show however that the funds available to her have not been sufficient to maintain her and, as we have said, we consider this to be such an emergency as is contemplated by the will in question.
The appellants further complain that we do not pass upon the question as to whether the sum of $987.63 received by the trustee from the estate of Clara R. Crawford over and above the original inventory of $150,319 belongs to principal or income. This was one of the items specifically directed to become a part of the principal of the fund and is dealt with as such in our original opinion. *Page 662
The evidence shows that over a period of years the trustee has accumulated on two farms constituting a part of the corpus and operated by the trustee, certain livestock, grain, feed, 24. farm machinery, seed and other personal property of the value of $5,300 and the appellant insists that these assets were "tied up" contrary to the express terms of the will and "at a time when the trustee was delving into the corpus for the life beneficiaries." They thus reason that "at the time `overdrafts' were permitted there was undistributed income in the trust."
These farms were a part of the original corpus of the trust and the trustee was expressly authorized to retain these assets if it deemed it advisable so to do and to hold, manage or rent the same. It elected to hold and manage the properties and there is no claim that in so doing it was guilty of bad faith or an abuse or unreasonable exercise of its discretion. It is difficult to understand how the trustee could properly hold and manage these farms without the use of the items mentioned, and it had an implied power to acquire and use them for that purpose. Bogert on Trusts Trustees, Vol. 3, § 551. It is not claimed that the trustee acquired more of such items than was necessary for the proper management of the farms nor that it kept any of them after they should have been disposed of and it seems apparent to us that it would not be proper management to dispose of these items every time the trustee was confronted with the necessity of finding income for distribution.
It is insisted that this court erred in holding that an allowance of attorney's fees to Alexander's attorney can be made from the corpus and that in so doing we ignore Garvin, 25. Receiver v. Rappaport (1940), 216 Ind. 471, 25 N.E.2d 249, and City National *Page 663 Bank Trust Co. of South Bend, Trustee v. American NationalBank at Indianapolis, Trustee, et al. (1940), 217 Ind. 305,27 N.E.2d 764. We have again examined the record and are convinced that the appellants have raised no question with reference to the appointment and payment of this attorney except perhaps as to the amount to be paid to him. The record shows that Alexander filed his written petition asking that he be permitted to employ the attorney to represent him in this proceeding, or that the court appoint the attorney for that purpose and that the court make such allowance to the attorney as to the court might seem proper. The appellants Anna Clara Robison and John McKittrick Crawford filed their written objections to the granting of this petition, which said objections the record shows "read as follows, to-wit: (said objections missing from the file)." We therefore do not know and have no way of knowing what objections were made to the granting of the petition in the court below. In this state of the record no question concerning the ruling is presented for our consideration. George B. Limbert andCompany v. Waznitsky (1921), 191 Ind. 419, 133 N.E. 128;Everitt, Seedsman v. Indiana Paper Company (1900),25 Ind. App. 287, 57 N.E. 281.
In so far as the amount of the allowance is concerned the order book entry shows that it was stipulated that the services of this attorney were of the reasonable value of $50 per day, while the bill of exceptions shows the total value of such services to be stipulated at the sum of $50 and the appellants cite the cases ofAlley v. The State, ex rel. Blenzinger (1881), 76 Ind. 94, and Blair v. Curry, et al. (1898), 150 Ind. 99, 46 N.E. 672, 49 N.E. 908, to the proposition that in such a situation the recitals of the bill of exceptions must be accepted *Page 664 as authentic. However, it is admitted in the briefs of the parties and was admitted by them in argument that the recital as contained in the bill of exceptions is incorrect and erroneous. The trial court was in a position to know the value of the services rendered and to be rendered by this attorney and we are not disposed to interfere with the allowance made.
We have again reviewed the evidence carefully and it is our opinion that all of the findings of the court are fairly sustained by the evidence, are within the issues and are not so equivocal that they must be disregarded.
The petition for rehearing is denied.
NOTE. — Reported in 48 N.E.2d 181.