Armstrong v. Armstrong

Gilfillan, C. J.

Assuming that the interests or estates of the children of the testator in the estate left by him are remainders, then they come under the classification of contingent remainders. A remainder is contingent while the person to whom, or the event upon which, it is limited to take effect remains uncertain. 1878 G. S. ch. 45, § 13. The estate, real and personal, is devised and bequeathed to the trustees, to be held for the benefit of the wife during her lifetime, “and after her death for the benefit of my children, (or their survivors,) in the proportion that each would be entitled to under law—that is, share and share alike—had this will not been executed, until my children shall become of lawful age.” The precedent estate vested in the trastees was to continue during the life of the wife, and, in case she died while any of the children should be minors, then to continue during the minority, which precedent estate was created, partly, at any rate, in order that the ■children surviving, when that estate should cease, might take share and share alike. It is not disputed that, if the words “share and share alike” refer to1 the principal of the estate, a contingent remainder was created, for the provision that the survivors shall so share renders it uncertain to whom the remainder will pass on the termination of the precedent estate. To avoid this inevitable ■conclusion it is suggested that the clause we have quoted, especially the words “share and share alike,” apply only to the income of the estate; but that part of the will treats only of the body of the estate. The subsequent part of it makes provision for disposition of the income during- the precedent estate, without any regard to the idea of equality in sharing it among the children or their survivors. In the first place, so much of the income during the life of the wife as may be necessary for the reasonable support and comfort of her and the children is to be paid to her for that purpose. That might take the entire income. And the surplus, if any, was to become part of the principal estate. In the second place, in case the wife should die during the minority of any of the children, the trustees were directed to pay to the guardian or guardians, not the equal share of each child in the income, but "such reasonable sum, quarterly, as may be necessary for their support and education, until they shall respectively become of age,” which might take all the income. No question is made as to the validity of the will. Its plan is apparent and simple. It is to keep the estate together till the death of his wife, and the arrival at majority of any children, minors at her death, and that it shall then go to the children then alive.

(Opinion published 55 N. W. Rep. 971.)

Order affirmed.