Testator's will provided that his property should go to his wife W for life, then in equal shares to his sister A and his brothers B and C. The language used was appropriate to create vested remainders in A, B and C. The will then provided, "And in case of the death of my said sister or either of my said brothers before the death of my said wife, the share that he or she would have taken shall be divided equally between his or her surviving children, by right of representation." A and B died before testator; C, shortly after him. A's three children, B's three children, and C's four children all survived testator, but at the time of this proceeding for construction of the will, only the four children of C and one child of B, together with W, were still living. C's children asserted that the petition was premature, on the ground that only such "children" as might survive the life tenant could take under the will. The lower court ruled that the petition was not premature; that at testator's death a one-ninth interest in the estate vested in each child of A and B, and a one-third interest vested in C; and that C's interest vested in his children upon his decease. C's children appealed. Held, affirmed. The local lapse statute was deemed to control the interests of A and B. "Surviving children" meant those who survived their parent, not those who survived W. In re Colman's Will, (Wis. 1948) 33 N.W. (2d) 237.
J. R. Mackenzie S.Ed.,
FUTURE INTERESTS-CONSTRUCTION OF "SURVIVING" IN SUBSTITUTIONARY GIFT OF REMAINDER,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol47/iss4/15