Lane, J.s.c., Temporarily Assigned.
Colonial First National Bank, successor trustee of the trust under Article Fourth of the will of Mary D. Hays, has presented to the court for approval its first and final accounting covering the period of October 10, 1968 to October 2, 1973. In conjunction with the accounting it also asked for instructions concerning the interpretation of paragraph 4 of Article Fourth.
All the rest, residue and remainder of my estate, including both real, personal and mixed property and wherever the same may be situate, I give, devise and bequeath unto my Executor and Trustee hereinafter named, in trust, however, for the following uses and purposes:
(1) To pay the net income of my estate to or for and on behalf of my said husband, ARTHUR G. HAYS, for and during the term of his natural life, the same to be paid at least semi-annually and to be effective as to all income received by my estate from the day of my death.
(2) Upon the death of my said husband, ARTHUR G. HAYS, and provided my brother, OTTO L. DEEDMYER, shall survive him, the said income shall be paid to the said OTTO L. DEEDMEYER for and during the term of his natural life and shall likewise be paid at least semi-annually.
(3) In the event my Executors and Trustees, in their discretion, should deem it necessary or advisable to use said income or so much of the principal as may, in their determination, be required to provide for the proper care, comfort and maintenance of my said husband, ARTHUR G. HAYS, during his lifetime, my said executors and trustees are hereby authorized and empowered, without necessity
of obtaining Court approval therefore, to use said income or any portion thereof and if said income should be insufficient, to use the principal of said trust or any portion thereof for such purpose during my said husband's lifetime.
(4) In the event my brother, OTTO L. DEEDMEYER, should predecease my husband, ARTHUR G. HAYS, leaving lawful issue him surviving, then I direct that upon the death of my husband, ARTHUR G. HAYS, the trust herein provided for shall end and terminate and the corpus of said trust together with any accumulation of income therein not yet remitted to or on behalf of my said husband, ARTHUR G. HAYS, shall then go to and I hereby give and bequeath the same in equal shares, share and share alike, to the issue of the said OTTO L. DEEDMEYER and their heirs, provided however, and it is my intention in such event, that if there are grandchildren of the said OTTO L. DEEDMEYER alone or together with children of the said OTTO L. DEEDMEYER who would then be entitled to share, that they shall all share equally in equal shares, per stirpes and not per capita. In the event that my said brother, OTTO L. DEEDMEYER, should predecease my said husband, ARTHUR G. HAYS, without leaving lawful issue him surviving, or without grandchildren him surviving, then said trust shall also end and terminate and the corpus thereof together with any accumulation of income therein not yet remitted to or on behalf of my said husband, ARTHUR G. HAYS, shall then go to and I hereby give and bequeath the same unto my said husband, ARTHUR G. HAYS, his heirs and assigns forever.
Mary D. Hays and Arthur G. Hays were married in 1912. Mary Hays' Will is dated January 15, 1959. She died July 16, 1966. Her husband died May 25, 1967. Her brother, Otto Deedmeyer, died October 2, 1973.
Mr. and Mrs. Hays had no children surviving. At the time of the execution of her will her brother Otto L. Deedmeyer, her nephew Lee H. Deedmeyer and his two children Diana Louise Deedmeyer and Lee H. Deedmeyer, Jr., were, with the exception of her husband, her next of kin. Mr. Hays' family other than his wife consisted of a nephew and two nieces, one of whom was married and had three children.
Mr. and Mrs. Hays each had substantial assets in his or her own right. On November 14, 1963, Arthur G. Hays created an inter vivos trust, reserving the income to himself for life, and upon his death to his wife, Mary D. Hays. In the event that Mary D. Hays should predecease Arthur G.
Hays, then the income was to be paid over equally to his two nieces and nephew, until the death of the last survivor of them, at which point the principal was to be divided among their issue. The will of said Arthur G. Hays had substantially similar provisions, except that it eliminated the income for life for Mary D. ...