The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1894-06-09

balance thereof distributed annually or
semi-annually, one tenth part thereof
to my granddaughter Matilda G. Brown,
and three tenths part thereof to each OF
my children, Philip H., John N. and
Ellen, during his or her life. AT the
decease of the last survivor of my child
rem, all the residue of my estate aud
property is to be conveyed and distribut-
ed in equal proportions to and among
my grandchildren then living and to
and among the lawful issue of anyone
deceased and lineal descendants there
from. The grandchildren taking per
capita and their lineal descendants by
right of representation.
Codicil. Il, John B. Brown, named
as the testator in the will to which this
is annexed, do hereby make this present
codicil, which l do order and direct
shall be taken as part of my annexed
last will and testament, and which in all
respects, excepting wherein it is altered
or modified by this codicil, do hereby
republIsh and affirm.
Second. 1t is my further will and
do hereby direct that if during the life
time of any of my children any of them
should die leaving minor child or
children unprovided with suitable sup
port during minority my said trustees
shall provide for such cnild or children
a suitable support from the income of
the general trust fund created in and
by the twenty-sixth clause of my will
during the minority of such child or
children but not beyond the lifetime of
all my children"
In apt phrase the tenor of the will and
codicil may be expressed:
devise of the residue of the estate
to trustees during the life of the sur
vivor of the testator's children, the whole
income to be distributed, first, in pay
ment of annuities, second, balance an
I l1l>,
children during their respective lives.
Minors of deceased child 10 be support
ed from the income during minority but
not beyond the term of the trust, re-
mainder over to grandchildren per CAPITA
The testator disposes of his entire estate.
He creates a trust for an uncertain term
but for term that is sure to elapse
He distributes the whole income OF the
trust annually. He first applies it to the
payment of annuities, then ITO of the
balance to grandchild by name, not
during its life, but during the life of the
survivor of his children, for when that
event happens, the trust is to cease, and
this grandchild if living takes an equal
share with the other grandchildren in
the remainder Its share although of
uncertain amount stands like the annui-
ties to be paid from the income and may
properly enough be classed with them.
Both, SO far as the words of the devise
show might continue beyond the term
of the trust. The former, the annuities,
if the annuitants survive all the children
of the testator, must be provided for al
though the will makes no provision for
such contingency. But the share to the
grandchild were it then living would be
adeemed by the manifest intent of the
testator for it then would share in the
principal fund, from the income of which
it had previously received it's annual
share. But the grandchiid having died
before the testator without Issue, it's an
nual share of income like an expired an
nuity ceased to be charge upon the
whole income, thereby increasing the
remainder to be divided under the terms
of the will. The testator, perceiving
that perchance some minor grandchild
might need support by reason of the
death of one of his children whose share of
income was limited to its life made pro-
vision for such contingency by a care
fully drawn codicil. In it not word is
said about the shares specifically devised
undoub tedly because he supposed such
share of income would fall into the bal
ance that he had directed to be distri but
ed annually. Moreover the grandchild
died before he did and had he supposed
that it would be thought that it's share
was not disposed of by the will it is in
credible that he would not only have
made provision for that condition of
affairs, but also for the contingency sure
to come, some child's decease before the
others.
What then is the situation at the death
of the testator? A trust had been Great
ed to continue during the life of the sur
vivor of his three living children. The
income was TO be distributed annually.
Annuitants were to be first paid, and
the balance remained for distribution
among his three children or not at all.
One of these children has since died,
1t is odd to say it's share of income must
be distributed under the express COM
mand of a will that fails to name to
whom it shall go. To avoid such a con-
clusion, the whole will must be care
fully scrutinized to see if intended
donees are not indicated. Distri button
to heirs follows from an entire absence
of testamentary provision concerning a
portion of tie estate. We have seen no
authority for distribution of income to
heirs, under a command for distribution
that did not indicate who should take
the property. In the absence of such
indication, it is more reasonable to dis
regard the command, and let the income
fall into the remainder and be distribut-
This view seems to be sustained by the
authorities cited at the bar. If, there
fore, the will does not specifically dis
tribute the whole income in this cause,
the portion omitted falls into the CAPT.
tai of the trust as it accrues year by
year and becomes part of the trust fund
as fast as received.
The manifest intention of the testaGor
not to die intestate as to any part of his
estate; bis express direction that all the
income of the trust shall be distributed
annually; his provision in the codicil
for minors of deceased children; his
failure to mention in the codicil the
share of income bequeathed to deceased
grandchild, aided by the policy of the
law against accumulations, lead to the
irresistible conclusion that the testator
intended to bestow the whole income,
first, to annuitants, and then to his
children as class, TO be enjoyed equally
and severally so long as more than one
of them should survive, and that the
survivor should take the whole until his
death, when the trust shall cease and the
trust fund be distributed equally among
the grandchildren and the issue of
| deceased grandchild by right OF represen-
tation. The whole will speaks of
co uality. first among children and then
among grandchildren per capita.
Nor does this view do violence to the
established rules of law. The bequest of
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