BUTLER ESTATE

Wills — Construction — Bequest of income to wife, and upon her death to children and their issue — Right of children to remainder.

1. Where testator created a trust to pay the income therefrom to his wife, and upon her death "to my children . . . share and share alike, and their issue, but if either shall die without issue then the whole of said income to be paid to the other"; it was Held, upon consideration of the entire will, that (1) the trust did not terminate upon the death of decedent's widow and (2) the income from the trust fund should be distributed to decedent's children in equal shares so long as both remained alive, and upon the death of the child first dying, his or her share of the income should be paid to his or her respective issue, but if such child first dying should die without issue, then the entire income from the trust fund should be paid to decedent's surviving child for the rest of his life. [280-4]

2. In such case, whether the will contained an implied gift of the principal of the trust fund to the issue of decedent's children upon the death of his surviving child, or whether there was an intestacy with respect to the principal, was not decided. [283-4]

OPINION PER CURIAM, March 20, 1950:

The decree is affirmed on the opinion of President Judge VAN RODEN. Costs to be paid out of the corpus of the estate.