The judicial instructions sought to be elicited in this action by the plaintiff in its fiduciary capacity necessitate a studious exploration of the will and codicil of James F. Rusling, and of the will of his widow, Emily W. Rusling, both of whom are now deceased and whose respective testamentary declarations have been admitted to probate.
An intelligible comprehension of the questions presented for solution requires also a chronological summary of the significant events, a bit of genealogy, and the quotation of pertinent excerpts from the testamentary documents.
James F. Rusling executed his will on February 11, 1908, and the codicil thereto on January 20, 1915. He died on April 1, 1918. He was survived by his widow, Emily W. Rusling, a son, James W. Rusling, then unmarried, and a married daughter, Emily Rusling Bates.
His widow, Emily W. Rusling, executed her last will and testament on January 28, 1919. She died on March 2, 1927, leaving her surviving the son, James W. Rusling, still unmarried, and the daughter, Emily Rusling Bates.
Thereafter James W. Rusling married (June 22, 1942) but died on January 31, 1947, without ever having had issue. His sister, Emily Rusling Bates, survives.
At the time James F. Rusling executed his will, both of his children, James and Emily, were unmarried. Generally described, it may be stated that he divided his estate into three parts, one part to each of his children absolutely, and the remaining third part to his wife for life, and upon her death to his son and daughter in equal shares. It is significant to observe that in both articles "Fifth" and "Sixth" of his will in referring to the gifts to his son and daughter, he directed:
"* * * in case of the decease of either of them without issue, the survivor to take both parts thereof -- the children of either one to have their parent's share, in case of his or her decease."
The codicil to his will obviously made after the marriage of his daughter contains the conventional ratification and confirmation of the will in all respects "save so far as any part thereof shall be revoked or altered by this present codicil or inconsistent herewith."
Since the provisions of the codicil and those of the will of his widow, Emily W. Rusling, relating to the disposition of their residuary real estate embody essentially the same terms and are expressed with only a few unimportant exceptions in identical language, I shall for present purposes exhibit the following composite transcription with the explanation that the words parenthesized are not in the will of Emily W. Rusling and those italicized are not in the revised will of James F. Rusling.
"* * * I give, bequeath and devise to (said) James W. Rusling and Emily Rusling Bates, in trust, to pay and divide the net income therefrom, equally between my ...