Gardiner Others, Trustees v. Willard Others , 6 R.I. 508 ( 1860 )

Bosworth, J.

By the terms of the will of Hezekiah Willard, all his estate, real and personal, was bequeathed and devised to his wife for life. In the event of his wife’s dying before his youngest child should attain the age of twenty-five years, the trustees were to hold the same until his youngest child should attain that age, in'trust for his three children, the income to be paid over annually, after paying expenses and compensation to the trustees, in equal shares. In the event of his wife’s death after the youngest child should attain the age of twenty-five years, two thirds of the estate was to go to the testator’s sons, and the remaining one third was to be held in trust for the testator’s daughter.

By the statement of facts submitted and agreed to by the parties, it seems that the testator’s wife died before the youngest child attained the age of twenty-five years ; and the trustees took the estate in trust for the three children. In the event which authorized this trust, the trustees have the estate for a limited period, viz.: until the youngest child should attain the age of twenty-five years. The other event, upon the happening of which, they would, according to the will, have an estate in trust for the testator’s daughter, did not and never can occur. The youngest child has now arrived at the. age of twenty-five years. The trustees, therefore, it seems to us, had an estate which is now determined, and no other estate has vested or can vest in them. By consequence, the estate reverts and vests in the next of kin and heirs at law. One of the testator’s sons has’ deceased without issue, • and the remaining children, son and daughter of the testator, are, therefore, entitled to hold the estate as tenants in common in equal-shares.

The bill of the trustees asks of the court a construction of the will as to the estates to which each of the two children are entitled, and as to what interest they are entitled to hold in trust, if any; and also asks for partition. We think, as inti mated above, that the trust is determined both as to the real estate and personal estate, and they may relieve themselves of the trust by quitclaiming the real estate to the two children of the testator who are living, and by paying over to each one half of the personal estate. No partition can be made under this bill, as those who bring it have no estate whereof partition can be made.