Morgan v. Darden , 3 Dem. Sur. 203 ( 1884 )

The Surrogate.

The will of this decedent contains the provision following: “ I give to my executors the sum of $3,000 ..... in trust to invest, ..... and to pay over the net income to the use of Louise E. White during her natural life, and from and after her death, and also in case said Louise E. White shall decease before me, I direct said income to be paid, one half to her daughter, Martha B. Young, and the other half to the use of Me dora Yerby, granddaughter of Louise E. White, during natural life. Upon the death of said Martha B. Young, I direct said executors to divide one half of said $3,000, among the children of said Martha B. Young, and upon the death of said Medora Yerby I direct my executors to pay over the other half of said $3,000 to and among the children of said Medora Yerby, and I direct that the children of Martha B. Young and of Medora Yerby shall each receive his or her share when they become 21 years of age. Should the said Medora Yerby decease before arriving at the age of 21 years leaving no issue, then on her death I direct her share to be divided among the issue of Martha B. Young, said issue taking per stirpes and not per capita. Should Martha B. Young, decease leaving no issue, then I direct that her share be divided among the surviving issue of Medora Yerby per stirpes and not per capita.”

Louise E. White and Martha B. Young having died, one half of the above named legacy has been paid to Mrs. Estelle B. Darden, the only child of Martha B. Young. In July last, Medora Yerby died at the age of 37 years. Mrs. Darden now claims the remaining half of the legacy. It is claimed, in opposition, by the special guardian of the infants interested in the residuary estate, that such remaining half passed into the residuum by reason of the decease of Medora Yerby without issue after she had arrived at the age of 21 years.

I have examined with great interest the ingenious argument of counsel for Mrs. Darden, but it has not persuaded me that I am at liberty to substitute other words, in place of- what seems to me to be the very plain and unequivocable language of this will. The gift over is to take effect only upon the happening of these three events: lsi, the death of Medora Yerby; 2d, her dying without issue; and, 3d, her dying during her minority.

To saddle the gift over with these conditions may or may not have been a judicious provision for the testatrix to make, but it is a very intelligible one, and is couohed in words which are free from ambiguity. As one of the three contingencies has not happened, and as its happening has now become impossible, I hold that the gift over has become ineffective, and that the $1,500 must, therefore, go to the residuary legatees.