In re Eaton's Estate

Ostrander, J. (after stating the facts). It is the contention of the appellant that one-half of the estate of the testator should have been assigned to the heir of George B. Eaton, the other one-half to the heirs of Marie P. Pendleton, subject to the continuance, during her life, or widowhood, of the trust fund created to secure her annuity. The theory of appellant is that the will contains no provision for the distribution of the estate, under the circumstances which existed at the time the testator died, and, therefore, the estate must be assigned, subject to said fund, to the children of his deceased children as representatives of their parents. It is clear that the reason for creating a trust estate embracing three-fourths of decedent’s property did not exist at the time of his death. The trust created by the will could not be executed, and the division of the property in accordance with the third subdivision of the will could not be made. The provision of the will which postponed the immediate devolution of the estate was wholly-ineffec [235] tive. It is equally clear that the testator contemplated that his son George might earn — beeome entitled to take —the whole of the trust fund, or three-fourths of the estate. If he did, there would then be no fund in the hands of the trustees to be disposed of under the provisions of the fourth subdivision of the third clause of the will. The will cannot be given effect according to its terms. It is said that because the testator omitted to make changes therein, or to make a new will, after the death of his son George, it must be assumed that he intended that one-fourth of the estate should, in any event, pass to the children of his daughter, together with one-half of the remainder, while the child of his son should take one-half the remainder or only three-eighths of his estate, and that out of the three-fourths interest there should be carved a life estate for the widow of the son. The will, however, provides for no such thing, and no such result can be arrived at by construction. The language employed by the testator is not ambiguous. His meaning is not doubtful. But his clear intention, as expressed in the will, cannot be carried out. It would be pure assumption to say that he intended that if his son George did not survive him his (George’s) daughter should have but three-eighths of his estate. We are of opinion that the executors, as trustees, acquired title to no part of the property, and that the estate was one which, subject to debts of the testator and to expenses of administration, devolved upon his death upon the children of his children, respectively, by right of representation. This should have been the order and decree of the probate court. The judgment of the circuit court is reversed, and the record will be remanded, with directions to the probate court to vacate its orders in the premises and to assign the estate in the manner herein indicated. Appellant will recover her costs of the circuit court and of this appeal out of the general estate. Montgomery, O. J., Hooker, Moore, and Stone, JJ., concurred.