
    McKINNEY et v McKINNEY et
    Ohio Appeals, 7th Dist, Lake Co
    Decided Aug, 1936
    EDITOR’S NOTE: — For opinion of Probate Court, covering questions involved in this litigation, see 24 Abs 68.
    Thompson, Hiñe & Flory, Cleveland, for Rigan McKinney and another.
    Squire, Sanders & Dempsey, Cleveland, for trustees and another.
   OPINION

By CARTER, PJ.

This cause, came on to be heard on August 27, 1936, on the appeal of Rigan McKinney and Elizabeth McKinney McIntosh, and on the appeal of Lucy D. McKinney, Donald B. Gillies and Edward G. Resch as trustees under the last will and testament of Price McKinney (Senior), deceased, on questions of law and fact, from the order, decree and declaratory judgment entered by the Probate Court of Lake County, and upon the petition of Lucy D. McKinney, Donald B. Gillies and James E. Ferris, trustees under the last will and testament of Price McKinney'(Senior), deceased, as plaintiffs, and the separate answers thereto of said Rigan McKinney, Elizabeth McKinney McIntosh, and Tracy H. Duncan, as administrator of the estate of Price McKinney, Jr., deceased, as defendants, filed in said Probate Court, and upon the stipulation of facts by said defendants and the record ordered and taken at the hearing in said Probate Court; defendant Lucy D. McKinney being in default of answer although duly served with process, and Edward G. Resch, having become successor to James E. Ferris as trustee under said last will and testament of Price McKinney (Senior), deceased, and having been substituted in the Probate Court for James E. Ferris as plaintiff in the proceeding.

The court having considered said pleadings, stipulations and record, and the arguments and briefs of counsel, finds in favor of the respective appellees for the reasons stated in the opinion of said Probate Court, save and except as to the prayer for instructions and declaratory judgment determining the time when the corpus of the estate is or was distributable; as to which no 'finding is made and the petition is dismissed.

The court accordingly construes the said last will and testament of Price McKinney (Senior), deceased, and gives direction to the trustees' under said will, as follows: That the interest of Price McKinney, Jr., in the corpus of the trust estate held by said trustees was vested in him at the death of the testator Price McKinney (Senior), and is distributable to Tracy H. Duncan as administrator .of his estate; to which Rigan McKinney and Elizabeth McKinney McIntosh except. ;

It is accordingly hereby ordered, adjudged and decreed that distribution of the corpus of the trust estate shall be forthwith made, and that such distribution of the interest of Price McKin-, ney, Jr., consisting of two-ninths (2/9) thereof, shall be made to Tracy H. Duncan as administrator of his estate, to which Rigan McKinney and Elizabeth McKinney McIntosh except.  