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Keywords

tortnegligenceliabilityappealtrialtrustwillsustained
tortnegligenceliabilitytrialtrustwillsustained

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Smith v. Rizzuto, 133 Neb. 655, 276 N.W. 406

Facts

A. R. Rizzuto died on January 11, 1934, leaving a will that devised all his real and personal estate to a trustee, Frank Rizzuto, with instructions to sell and convert the estate into money for the benefit of the trust. Edna Smith, a tenant in the apartment house owned by the trust, slipped on ice on January 14, 1934, which had accumulated due to the alleged negligence of the trustee in maintaining the property. The trial court dismissed her action based on a general demurrer.

The petition alleges that A. R. Rizzuto died on January 11, 1934, leaving a will which contained the following provisions: 'I devise and bequeath all my real and personal estate and effects unto my trustee, upon trust to sell, call in and convert the same unto money…'

Issue

Whether the trial court erred in dismissing Edna Smith's action against Frank Rizzuto, the trustee, for injuries sustained due to alleged negligence in maintaining the property.

Whether the trial court erred in dismissing Edna Smith's action against Frank Rizzuto, the trustee, for injuries sustained due to alleged negligence in maintaining the property.

Rule

A testamentary trust conveys fee-simple title to the trustee immediately upon the death of the testator, and a trustee is personally liable for torts committed in the course of administering the trust, unless the liability was incurred without personal fault.

A testamentary trust conveys fee-simple title to the trustee immediately upon the death of the testator, and a trustee is personally liable for torts committed in the course of administering the trust, unless the liability was incurred without personal fault.

Analysis

The court applied the rule that a testamentary trust conveys immediate title to the trustee upon the testator's death, concluding that Frank Rizzuto was the trustee at the time of the incident. The court also noted that the trustee could be held personally liable for torts committed during the administration of the trust, and that the allegations in the petition were sufficient to state a cause of action against him.

We are convinced that the testamentary trust set out in the will of A. R. Rizzuto conveys the fee–simple title to the property involved herein to the named trustee in the will.

Conclusion

The court reversed the trial court's dismissal of the action, allowing Edna Smith's case to proceed for further proceedings.

The judgment of the trial court is reversed and the cause is remanded for further proceedings in accordance with this opinion.

Who won?

Edna Smith prevailed in the appeal as the court reversed the dismissal of her action, allowing her claims to be heard.

We have come to the conclusion that the petition states a cause of action and that the trial court erred in sustaining the demurrer and dismissing the action.

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