Mayhew v. . Davidson

Prarson, O. J. The property given to four of the children of the testator, to wit, Presley, Matilda, Mahala and Evelina, is to be held in trust for them during their natural lives, and at the death of any one of them leaving a child or children, the share of the deceased parent is to belong to such child or children ; but if one or more should die without leaving a child or children “the property is to return to her, his or their brothers and sisters.” Mahala *49 died without leaving a child, and the question is, Who take under the description, “her brothers and sisters?” The will takes effect and speaks at the time of the testator’s death, and the brothers and- sisters of Mahála living at that time-areas clearly designated by this description, as if they had been named. These-words do not include brothers and sisters who may have ''died in the testator’s lifetime. For-they would naturally be referred'to as “deceased brothers and sisters.” ’ The children of such would be spoken of as Mahala’s nephews and nieces. On the other hand the words cannot be restricted to brothers and sisters living' at Mahala’s death; for to give them that effect, it would -be necessary to * add the words “living at her death,” or to say, surviving brothers and sisters, or words of a similar import. We have here then a contingent limitation where the persons are certain and the event' uncertain. Interests of this sort,- if in land, are -transmissible by descent; if in personalty, devolve upon-the personal representative ; Newkirk v. Hawes, 5 Jones Eq., 265. The property, to which Presley-becomes entitled as one of these brothers,- will not-be subject to the trust which affects the-property originally given to him. There will’be a decree declaring the Tights -of the parties according to this opinion. Themosts will be paid out of - the fund. -Fjer Curiam. Decree accordingly.