Jane S. Kuehn, Jr. The District County Court of Minnehaha County, South Dakota, construed the Article as indicating an express intention of the testatrix that the right to income should accrue from the date of distribution, rather than from the date of death.
The appellants contend such interpretation is erroneous. She left surviving her a son, Max A. Upon the death of Max A. Other provisions authorize encroachment on the principal for the benefit of Max A. After the decease of Max A. The balance of the net income then goes to Martha Kuehn Maierhauser for her lifetime and, after her death, to charitable remaindermen if she dies without issue.
Encroachment on the principal is also authorized for the benefit of Martha Kuehn Maierhauser for her proper care, support and maintenance. Unless Article Fifth of the will indicates an express intention on the part of the testatrix to have the income accrue from the date of distribution such income would accrue from the date of her death.
This is so because our statute SDCL provides in case of a bequest of income from a fund the income accrues from the date of the testator's death, subject only to an express intention on the part of the testator to indicate otherwise. SDCL The fact that the trust assets are a part of the residuary estate, and not capable of being determined or turned over to the trustees until administration of the estate is complete, does not defeat payment of the income to the live beneficiary from the date of the testator's death.
Folsom v. Strain, Neb. In that case, the court said:. The general rule is that when property is devised or bequeathed in trust to pay the income to a person for life, or for a limited time, he is entitled to such income from the date of death of the testator unless the testator has indicated an intention that the income shall not begin until a later date.
