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In Re Hartung's Estate

December 31, 1916

IN THE MATTER OF THE ESTATE OF OTTO HARTUNG, DECEASED.


Appeal from Second Judicial District Court, Washoe County; John S. Orr and R. C. Stoddard, Judges.

Thomas E. Kepner and C. E. Mack, for Appellant.

Cheney, Downer, Price & Hawkins, for Respondents.

By the Court, Coleman, J.:

This is an appeal by the Grand Lodge of the Independent Order of Odd Fellows of the State of Nevada from the decree of distribution made in the above-entitled estate, and from an order overruling a motion to modify said decree.

The controversy grows out of the construction of the

[39 Nev. 200, Page 204]

will of Otto Hartung, deceased. Those portions of the will which are essential to an intelligible understanding of the questions involved read as follows:

“Eighth—In place of the provisions contained in paragraph 6, I give and bequeath to my sister Amalia Genkell of 14a Langenstrasse, Ilversgehoven, Germany, the sum of one hundred ($100.00) dollars, and in addition thereto the sum of twenty-five ($25.00) dollars monthly dating from my death during the remainder of her natural life, and I direct that the said monthly payment of twenty-five ($25.00) dollars be transmitted to her by my executors, and after their discharge by the trustees hereinafter named, and without deduction for cost of exchange and transmittal. * * *”

“Tenth—I give, devise, and bequeath all the residue of my estate, both real and personal, as follows:

“(A) To the Independent Order of Odd Fellows of the State of Nevada the income from my estate to be paid over to them by my executors and trustees annually, if within five years from the date of my death the said Independent Order of Odd Fellows of the State of Nevada, does establish a home worthy of its name, for orphans and foundlings near Reno, Nevada, and to be known by the name of the ‘Royal D. Hartung Home for Orphans and Foundlings' but if the Independent Order of Odd Fellows of Nevada does not accept the provision of this bequest, within the time herein mentioned, then—

“(B) I give and bequeath all my estate to the board of school trustees of Reno, Nevada, provided that they will build and establish within the Reno school district an industrial school, the land and building to cost not less than twenty-five thousand ($25,000.00) dollars. The cost of this land and the building shall be paid by the taxpayers of the Reno school district. The said school shall be known as the ‘Royal D. Hartung Industrial School,' and my estate shall be excepting where already invested in safe, and good income-bearing bonds, reduced to cash and loaned out upon first-class real estate security, the income thereof to be considered as an annual

[39 Nev. 200, Page 205]

endowment fund and the income thereof only to be expended annually by the Board of Trustees for the purpose of paying the teachers, or supplying facilities for instruction in the Royal D. Hartung Industrial School. If, after a reasonable time has elapsed not exceeding seven years after the date of my death, the city of Reno fails to accept the provisions of this bequest, then—

“(C) I give and bequeath all my estate, both real and personal not otherwise herein devised, to the board of regents of the State University of Nevada, that my estate be reduced by them to cash, or good income-bearing securities, and loaned out upon first-class real estate security and the income thereof alone to be expended annually, or at such other period as such trustees may deem best in assisting poor, worthy students, of high moral character, in obtaining an industrial school or industrial college education in the city of Reno, and I expressly direct that the principal of said gift to said board of regents be kept intact and that the fund be kept a perpetual fund to be known as the ‘Royal D. Hartung Industrial Education Fund'; and I further authorize a majority of the members of said board of regents to act with respect to the disposal of said income, or in any matter respecting said fund or the income thereof, said regents to be and act as trustees of said fund without pay.

“Eleventh—I nominate, constitute, and appoint C. T. Bender, now cashier of Washoe County Bank of Reno, Nevada, J. E. Stubbs, president of the State University of Nevada, and Edward Barber, grocer of Reno, Nevada, the executors of this my last will and testament; a majority of whom may act in the execution of the provisions of this will; and I do hereby authorize and direct that in the event of the death of any of the said executors the surviving executor or executors may act in the execution of this will as fully and legally as could the three hereby appointed. And that the said executors shall act as trustees without pay excepting as hereinbefore provided, and that the survivors shall have the

[39 Nev. 200, Page 206]

power of appointing the successors of any one of such executors or trustees, in case of death, or refusal or inability to act, subject to the approval of the judge of the district court at Reno.”

The lower court found:

That appellant had established a home in accordance with the terms of paragraph 10 of the will of the deceased, and ordered that all expenses of closing the estate be paid. “(4) That said estate is in a condition to be closed and the property set over and distributed to the trustees under said will. * * *” That the executor of the estate “pay to the trustees of the Grand Lodge of the Independent Order of Odd Fellows the income of said estate since the 20th day of September, 1914, to wit, the sum of $1,112.45, to be used by said trustees of said grand lodge for the maintenance and support of said Royal D. Hartung Home for Orphans and Foundlings,” the date mentioned being that upon which the home was dedicated. “(5) That Edward Barber, as sole executor of said estate, deliver to said trustees (named in the will), * * * and that the rest and residue of said estate, * * * together with any income received since filing said final account, be and the same hereby is set over and distributed to * * * trustees, and their successors in trust, for the uses and purposes set forth in the tenth paragraph of said will, subject to the claim of Amalia Henkel to a monthly allowance to be paid therefrom by said trustees since November 2, 1914, and as long as said Amalia Henkel shall live. * * *

“It is further ordered that at least ten days prior to the 1st day of August of each year hereafter, and until the further order of this court, the trustees of said estate present to this court their account and report showing the income of said trust estate since the 1st day of August of the preceding year, together with the necessary expenses of the administration of said estate, and ...


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