Thresher's Appeal From Probate

Hamersley, J. The testatrix, in disposing of the resi *45 due of her estate, gives to her son during his life the beneficial interest in the income and, in case of necessity, in the principal of that residue, and provides for the disposition at his death of the remainder in view of the happening of one of two inconsistent contingencies: (1) “ if at his death he shall leave lawful issue,” and (2) “ if he shall die without issue.” In each case the testatrix unmistakably refers to the death of her son after the gift to him for life has vested. The appellant claims that the disposition made of the remainder, which is dependent on the happening of the first named contingency, is obnoxious to the statute of perpetuities in force at the time the testatrix died, and is therefore void. If we assume, without passing on its correctness, that this claim can be sustained, we fail to see how sustaining it affects the real question before us. The first contingency has become impossible by the happening of the second, for one could not happen without the other becoming impossible. There can be no question of the validity of' a bequest of the remainder to these appellees, in case the life tenant dies without issue; and its operation cannot be defeated by the fact that the will also contains a bequest of the remainder to others, in case the life tenant dies leaving issue, whether such other bequest be a valid one or not. It is the happening of the alternative contingency, and not the character of the alternative bequest, that can affect the gifts made to these appellees. These considerations dispose of all the errors based on the first three claims made by the appellant. In view of the facts found by the trial court, there is really no foundation for the other three claims. They are not seriously pressed by the appellant in his brief, and, we think, do not call for comment. There is no error in the judgment of the Superior Court. In this opinion the other judges concurred.