The plaintiffs, trustees under the last will and testament of Francis Leon Chrisman, filed a petition for advice respecting the division of the residuary estate of the decedent, and the defendants join in the prayer.
The pertinent clause of the will provides:
"6 -- (d) I direct my said trustees, after setting aside the fund provided in the preceding clause of this will, to invest the remainder of my residuary estate and to keep the same invested in good and lawful securities, and pay over the net income arising therefrom to my wife, Carrie L. Chrisman, so long as she shall live, with the provision that in the event of her serious illness or other dire necessity my trustees may use such portion of the principal as they may deem necessary for her support and comfort.
"I further direct that my trustees shall pay from the said trust fund all the expenses of my wife's last illness and funeral.
"Upon the death of my wife, Carrie L. Chrisman, I direct that my residuary estate shall continue to be held in trust by my trustees, to be divided among and paid over to such grandchildren of mine as shall be living at the time of my death, and shall live to attain the age of twenty-five years, each grandchild to receive the income from his or her share after attaining the age of twenty-one years, and the principal when he or she attains the age of twenty-five years.
"In the event of the death of any of my grandchildren surviving me before attaining the age of twenty-five years, the share of such deceased grandchild shall be divided among the surviving grandchildren.
"If there are no grandchildren surviving me then I give, devise and bequeath my residuary estate, after the death of my wife to the Trustees of Cornell University, Ithaca, New York, absolutely."
The testator died on August 12, 1934 and his wife on November 25, 1940. At his death there were three grandchildren living. Subsequent to his death, a fourth grandchild was born, so that there were four grandchildren living at the time of the death of testator's widow. The question upon which advice is sought is whether the residuary estate should be divided among the three who were living at the death of the testator or among the four grandchildren living at the death of Mrs. Chrisman, when the division of the residuary estate was directed to take place.
Evidently the will is that of an intelligent man of substantial means and drawn by counsel. Subsequent to its execution it was examined, reviewed and altered by two codicils. It contains carefully considered trust provisions for the benefit of his
widow, grandchildren and contingent beneficiaries. It contains bequests to charitable, religious and educational institutions for worthy and highly commendable purposes. It bears all the earmarks of a will of a fine cultured gentleman who had given thoughtful ...