In re Gardner

106 F. 670, 1901 U.S. Dist. LEXIS 346

Opinion

BROWN, District Judge

(after stating the facts). In my opinion there was no present gift by this will to the bankrupt, a grandchild, but only a contingent future gift, and that gift was not of real estate, nor of any remainder in real estate, but only of money arising from a. sale to be made after the death of the testator’s two children. That gift moreover is only to the grandchildren or their issue (not to their heirs) who shall survive the daughters. It was not a gifi to individuals named, but only to a class composed of persons who should them survive, or their issue. The real intent of the testator was that those who neither survived the daughters, nor left issue surviving them, should take nothing; but that the whole proceeds should- be divided among those grandchildren or their issue who did survive the two daughters. To hold that an interest vested in each grandchild prior to that time, or at the death of the testator, which could be alienated or sold under execution, would directly contradict the language and evident intent of the will, and diminish the interests which the actual survivors would be entitled to. In other words, the gift is future and contingent only, and carries no present vested interest that is alienable. See In re Hoadley, 3 Am. Bankr. R. 780, 101 Fed. 238, and cases there cited.

Stay granted.