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his estate into four portions and pay to each of his children one-fourth part of the income during the life of each. Two of these children were daughters, of whom Mrs. Stuart

was one.

Under the eighth clause, at the death of either of his said daughters, the trustees are directed:

"To pay to each of the children of such deceased daughter an equal portion of her share, discharged of said trust; the lineal descendants of any deceased child to take the part of such share as their parent would have taken if alive." Mrs. Stuart died leaving an illegitimate son of her illegitimate daughter and a legitimate daughter.

The sole question on this part of the case is: Did the testator intend by the devise to the children of his deceased daughter to include illegitimate as well as legitimate children?

The opinion asserts that in ordinary speech by the use of the word "children" we mean illegitimate as well as legitimate children. This seems to me at variance with common usage.

each testator to write the word legitimate, or its equivalent, before each devise to children, heirs, or issue of a woman. We venture the view that the profession of the state have never so defined and used these terms in making such devises. Nor do we believe that the ordinary testator so intends when he makes use of these terms in a devise to a woman.

If Mr. Eaton had devised the life use of the residue of his estate to his children with remainder over to their children or issue, and one daughter and one son died each leaving an illegitimate child, as we understand the opinion the illegitimate child of the deceased daughter of the testator would take, while the illegitimate child of the son would not. In one case children includes illegitimates; in the other, the same word has a different meaning and excludes the illegitimate from the devise. This inconsistency must result, else it must be held that in every will the word children embraces illegitimates as well as legitimates whether applied to a devise to the children or issue of a mother or a father.

It would be a strange and prideless grandfather who intended to perpetuate in his will his own daughter's misfortune by intending to include among her children the offspring of her frailty. Men and women as a rule do not expose their family secrets in that fashion. And Reuben Eaton, so far as the record before us shows, did not in my opinion intend otherwise than his fellows would have intended. He did not intend to provide for a line of illegitimates.

ents afterwards intermarry shall be deemed "Children born before marriage whose parlegitimate and inherit equally with other children."

Again, the opinion assumes that our failure to accept the common-law doctrine that a bastard is nullius filius led to the corollary that the word "children" in a will embraces illegitimate as well as legitimate offspring unless a different intent is to be gathered from the will read in the light of surrounding circumstances. It assumes, too, that a different interpretation follows from that prevailing in those jurisdictions which by statute have legislated upon this subject. These statutes recognize the illegitimate offBy the Public Acts of 1876, p. 91, c. 14, an spring as the child of his mother and per- addition to our statute of distributions was mit him to inherit from and through her. made. This act was passed immediately folThey give by statute what our court declar-lowing Dickinson's Appeal, 42 Conn. 491, 19 ed to be the law of this jurisdiction. And, Am. Rep. 553, and in its present form (G. S. of necessity, the same results should follow 1902, § 396) reads as follows: in each case. From the fact that the law recognizes the illegitimate as the child of his mother and permits him to inherit by and through his mother to the position that any testator, when he makes a devise to the children of a woman, intends to include her illegitimate as well as her legitimate children seems to me a rather long jump. This construction does not follow as a corollary I am of the opinion that the entire share from our doctrine any more logically than it of the testator's estate held in trust and follows from the statutes of other jurisdic-devised to the children of Mrs. Stuart should tions which have placed their law upon a be paid to her legitimate child. parity with ours. In most of these states where by statute they have changed the common law, the word "children," when used in a will, deed, or contract, means legitimate children unless the will as read in the light of the surrounding circumstances shows a plain contrary intent. This we believe to be the almost universally accepted construction. "The natural and legal import of the term children is legitimate children." Heater v. Van Auken et al., 14 N. J. Eq. 159, 164.

In order to avoid the consequences of this opinion, it will be necessary hereafter for

This clearly expressed the legislative intent, and it would seem that the further legitimation of illegitimates should be expressed by legislative enactment rather than by judicial decision.

(88 Conn. 286)

EATON v. EATON et al. (Supreme Court of Errors of Connecticut. June 10, 1914.)

1. PERPETUITIES (§ 3*)-RULE AGAINST PERPETUITIES--OPERATION OF STATUTE.

A will executed in 1891, which was conby testator in 1897, who died in 1899, is not firmed and re-established by a codicil executed within the statute against perpetuities repealed by Pub. Acts 1895, c. 249.

[Ed. Note.-For other cases, see Perpetuities, Cent. Dig. § 3; Dec. Dig. § 3.*]

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

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2. WILLS (8 614*) - CONSTRUCTION ESTATES also a grandson, the defendant Louis Eaton ACQUIRED. Sterry, born in 1893, and the illegitimate son of Nora Estelle Eaton, who was the illegitimate daughter of said Ann Jane Stuart born in 1877 and died in 1896. The will contained the following provisions:

Where testator bequeathed a specific sum in trust to pay the income to the four children of a deceased brother for their lives, and directed that if any of the children should die leaving issue the part of the trust fund of which the child was entitled to the income should go absolutely to such issue, and gave a half of his residuary estate in trust in the same manner, a child took only a life estate, and on his death leaving issue surviving the remainder over of the part of the trust fund of which the child was entitled to receive the income vested in such issue absolutely. [Ed. Note. For other cases, see Wills, Cent. Dig. §§ 1393-1416; Dec. Dig. § 614.*]

3. WILLS ($ 498*)-CONSTRUCTION "ISSUE OF HIS OR HER BODY."

The words "issue of his or her body," in a will creating a trust to pay the income to children for their lives, and if any of the children die leaving issue of his or her body a portion of the trust fund of which the child was entitled to the income should belong to the issue, mean issue in any degree and includes illegitimate issue, in the absence of anything to indicate the use of the words in any other than their prima facie signification.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1087-1089; Dec. Dig. § 498.*

For other definitions, see Words and Phrases, vol. 4, p. 3794.]

"(7) I give and bequeath to my said executors the sum of four thousand dollars to be held by them in trust for the following purposes, viz., to hold, invest and reinvest the same as trust funds by law may be held and invested, and annually or oftener in their discretion, to pay over the income thereof equally to Edward L. Eaton Eaton and Sophia J. Eaton all of Kent, chilof Warren, Conn., Ann J. Stuart, Burritt dren of my deceased brother, Reuben Eaton, during their lives. But if any of said children die leaving issue of his or her body, then the portion of said trust fund of which said child or children are entitled to the income shall go and belong absolutely to such issue; and if the survivor of such children die leaving no issue, then the remainder of said trust funds shall go and belong absolutely to the issue of the other children, in such manner, as all of such issue shall receive an equal portion of said four thousand dollars.

"(8) All the rest, residue and remainder of my estate I give, devise and bequeath unto my brother Luther Eaton and said children of my deceased brother Reuben, as follows, viz., onehalf thereof absolutely to my said brother Luther, and the remaining one-half to said children.

4. WILLS (704*)-CONSTRUCTION-JURISDIC- of Reuben, to be held in trust in the same way TION OF COURT.

The court, in a suit to determine the validity and construction of a will, will not determine questions unrelated to contingencies which have arisen or to existing conditions.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1680, 1681; Dec. Dig. § 704.*]

Wheeler, J., dissenting.

Case Reserved from Superior Court, Litchfield County; William S. Case, Judge.

Suit by Charles A. Eaton, executor and trustee of the will of Russell Eaton, deceased, against Ruth Ann Eaton and others to determine the validity and construction of the will of the deceased. Cause reserved on the facts alleged in the complaint for the advice of the Supreme Court of Errors. Ques

tions answered.

Russell Eaton died March 23, 1899, leaving a will of which the plaintiff is executor, executed November 18, 1891, and a codicil thereto executed March 1, 1897, both duly probated. In the codicil the original will was confirmed and established in all respects not affected by the codicil. He left surviving him a widow, the defendant Ruth Ann Eaton, a brother Luther, his sole heir at law, and certain nephews and nieces. Luther Eaton died leaving a will of which Charles A. Eaton is executor. In that capacity he is made a party. Edward L. Eaton, Burritt Eaton, and Sophia J. Eaton, named in the seventh paragraph of the will, are still living. They and the administrator upon the estate of Ann Jane Stuart, who died March 2, 1913, are included among the defendants. Ann Jane Stuart left surviving her a legitimate daughter, the the defendant Gertrude Stuart Benson, who was born in 1892, and

and manner, as is provided in the preceding section (7) of this my last will and testament."

The superior court is asked to give its advice in answer to the following questions:

"(1) Whether the provisions of the seventh section of said will, or any of them, and, if so, which, are invalid because of the statute against perpetuities in force at the time said will was made.

"(2) Whether the provisions in the eighth section of said will giving 'the remaining onehalf to said children of Reuben, to be held in trust in the same way and manner, as is provided in the preceding section (7) of this my last life use of said one-half of the residue, and diwill and testament,' give said children only the rects the distribution of the principal thereof upon the death of any of said children in the to the $4,000 bequeathed in the seventh section same way and manner as is directed in regard

of said will.

affirmative, then whether the provisions of the "(3) If the second question is answered in the eighth section of said will, or any of them, and, if so, which, are invalid, because of the statute against perpetuities in force at the time said will was made.

"(4) If the second question is answered in the negative, then to whom, and in what proportion, said one-half of the residue of said estate goes, of what right belongs, and should be dis

tributed.

"(5) Whether that portion of the trust fund held by the plaintiff of which said Ann J. Stuart was entitled to the income during her life shall now be paid over and distributed. "(6) If said portion shall now be paid over and distributed to whom, and in what proportions the same goes, of right belongs, and should be distributed.

section of said' will, 'But if any of said chil"(7) Whether, in the phrase in said seventh dren die leaving issue of his or her body' the testator intended by the words 'issue of his or her body' children or descendants generally. "(8) Whether by said words 'issue of his or her body' the testator intended legitimate issue only."

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

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"But if any of said children die leaving issue of his or her body, then the portion of said trust fund of which said child or children are entitled to the income shall go and belong absolutely to such issue."

One of the children, Mrs. Stuart, had an illegitimate daughter born March 26, 1877, who died September 14, 1896. This daughter had an illegitimate son born December 5, 1893, and now living. The testator's will was published November 18, 1891, and the codicil thereto March 1, 1897, which recited, "I hereby confirm and establish my will in other respects." At the death of Mrs. Stuart and at the making of the codicil Gertrude was the only living child of Mrs. Stu

of the will meant the legitimate issue of her body. If it could be held to include illegiti

PRENTICE, C. J. (after stating the facts as above). [1] This will, which was confirmed and re-established by its codicil in 1897 and did not speak until the decease of the testator in 1899, does not come under the operation of the statute against perpetuities repealed in 1895. P. A. 1895, c. 249, p. 590. [2] The gift of one-half of the rest, resid-art. The "issue of her body" in this clause ue, and remainder to the children of Reuben contained in the eighth paragraph was a gift in trust to be held and disposed of, principal and income, in precisely the same way as was provided in paragraph 7 for the management and disposition of the $4,000 fund, principal and income, which was the subject-matter of the provisions of paragraph 7. Ann Jane Stuart, having died leaving issue surviving, took only a life use. The remainder over of that portion of the trust fund of which she was entitled to receive the income vested in her issue and upon her death became an absolute estate in them.

[3] By the words "issue of his or her body," as used in paragraph 7, was meant issue in any degree. That is the primary and usual meaning of those words, and there is nothing to indicate their use here in any more limited sense. Bartlett v. Sears, 81 Conn. 34, 39, 70 Atl. 33; Perry v. Bulkley, 82 Conn. 158, 164, 72 Atl. 1014.

The words "issue of his or her body" include illegitimate as well as legitimate issue. There is nothing in the will to indicate the use of these words in any other than their prima facie signification. Eaton v. Eaton, 88 Conn. 91 Atl. 191.

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That part of the trust fund held by the plaintiff, of which Ann Jane Stuart was entitled to the income during her life, is now payable to her daughter Gertrude Stuart Benson and her grandson Louis Eaton Sterry, one-half thereof to each.

[4] Advice is not given, and should not be given by the superior court, upon questions unrelated to contingencies which have arisen or to conditions that exist.

The superior court is advised to render its judgment in conformity with the above conclusions. No costs in this court will be taxed in favor of any of the parties. In this opinion the other Judges concurred, except WHEELER, J., who dissented.

WHEELER, J. (dissenting). The testator gave to trustees a fund the income from which was to be paid equally to the children of his brother during their lives. He then provided:

mate issue of her body, there was none such at the republication of the will and the testator could not then have so intended.

We need not renew or repeat our discussion had in the case of the will of Reuben

Eaton.

The uncle of Mrs. Stuart (Russell Eaton) did not, in my judgment, by the devise to the issue of her body intend to include therein the illegitimate son of the illegitimate daughter of Mrs. Stuart, but did intend to include only the legitimate children of Mrs. Stuart.

RUDKIN v. RAND.

(88 Conn. 292)

(Supreme Court of Errors of Connecticut. June 10, 1914.)

1. PERPETUITIES (§ 4*)-CREATION OF FUTURE ESTATE.

Where testatrix made successive conditional devises to four nephews, with limitations over upon failure of surviving descendants, and then to certain heirs, the limitation to the heirs was in contravention of the statute against perpetuities.

[Ed. Note.-For other cases, see Perpetuities, Cent. Dig. §§ 4-44; Dec. Dig. § 4.*]

2. ESTATES (§ 7*)-CONDITIONAL FEE-STATUTE DE DONIS CONDITIONALIBUS.

The conditional fee of the common law or the statute de donis conditionalibus have never been recognized or adopted in Connecticut.

[Ed. Note.-For other cases, see Estates, Cent. Dig. § 7; Dec. Dig. § 7.*1

3. ESTATES TAIL (§ 3*)-STATUTORY MODIFI

CATION.

Words appropriate to the creation of an estate tail vest a fee simple in the issue of the first donee in tail; such issue taking no interest in the land during the life of the donee, and the donee having no alienable interest beyond a life interest.

[Ed. Note.-For other cases, see Estates Tail, Cent. Dig. § 3; Dec. Dig. § 3.*]

4. ESTATES TAIL (§ 1*) - CREATION - LAN

GUAGE.

Language which would create estates tail at common law will create them in Connecticut. [Ed. Note.-For other cases, see Estates Tail, Cent. Dig. § 1; Dec. Dig. § 1.*]

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

5. DEEDS (§ 127*) - WILLS (§ 605*) - CREA- | among the heirs of my brother D. C. Rand, the TION OF ESTATE TAIL-LANGUAGE NECESSARY-DEED AND WILL.

An estate tail cannot be created by deed unless the word "heirs" is used, and no synonyms, such as "issue," "descendants," "seed," or "offspring," will suffice, but, as applied to devises, the rule is not so strict, no formal words being necessary, but any language disclosing an intention to create such an estate is sufficient.

[Ed. Note.-For other cases, see Deeds, Cent. Dig. $$ 358, 359; Dec. Dig. § 127;* Wills, Cent. Dig. §§ 1360-1365; Dec. Dig. § 605.*] 6. DESCENT AND DISTRIBUTION (§ 12*)—EsTATES TAIL-NATURE AND INCIDENT.

The heirs or issue of a donee in tail take by inheritance only and not by purchase.

heirs of Jane S. Smith and the heirs of Catherine H. Carnahan: Provided always that if any son leaves a descendant, the said property shall be given to such descendant or descendants." The five lines of the original draft immediately following were erased before execution, to wit:

"Upon the same proviso and condition, and if such descendant fail to meet the said requirements, and shall die without any descendant, the next son as herein before provided shall take, and so on."

Upon Mrs. Rand's death the defendant, being the first of her nephews named in said paragraph, for the purpose of fulfilling the [Ed. Note.-For other cases, see Descent and condition therein as to home, and thereby Distribution, Cent. Dig. § 50; Dec. Dig. § 12.*] vesting in himself such title to said property 7. WILLS (§§ 605, 614*)-CONSTRUCTION—-ES- as might thereby vest in him under said parTATES TAIL-ESTATE AND INTEREST OF DEV-agraph, came to Middletown to care for the

ISEES.

Testatrix devised realty to her nephew, the first son of her brother, upon condition that he make his home thereon, "but if he fails to do so, or if he dies leaving no descent or descendants," then the property to go to the second son of her brother upon the same condition, "but if he fails to meet the requirements, or if he dies leaving no descendant, or descendants," then it was to go to the third and fourth sons of her brother successively upon the same conditions. Held, that the intention was that the nephews would take a life estate, and their surviving descendants a remainder over by purchase, and hence did not create an estate tail; the gift being direct and in absolute terms to persons described and not a provision for the transmission of title in unending sequence.

[Ed. Note. For other cases, see Wills, Cent. Dig. §§ 1360-1365, 1393-1416; Dec. Dig. 88 605, 614.*]

Case Reserved from Superior Court, Middlesex County; William S. Case, Judge.

Action by Carrie E. Rudkin against Philip C. Rand, for breach of a covenant of seisin in fee simple. On reserved questions. Judgment for defendant.

Lucia A. Rand died in 1892 seised and possessed in fee simple of the real estate described in the. complaint. This property is included in that which she disposed of by the thirteenth paragraph of her will duly probated, which reads as follows:

"All the rest and residue of my estate, bank stock, railroad stock, notes and mortgages (if any) all the real estate on Mount Vernon, and Washington streets, all the real estate I own at Rockfall, Connecticut, with the mill, machinery and capital invested there, I give, devise and bequeath to my nephew Philip C. Rand with the proviso and on condition that he makes his home in Middletown aforesaid, or at Rockfall, aforesaid, to care for the property; but if he fails to do so or if he dies leaving no descendant or descendants, then all the property by this article of my will given to him shall be given to C. M. W. Rand, second son of my brother upon the same proviso and condition; but it he fails to meet the above requirements, or if he dies leaving no descendant or descendants, then it shall be given to Samuel the third son, but if he fails to meet the above requirements or dies leaving no descendant or descendants then it shall be given to Robert the fourth son; but if he fails to meet the above requirements or dies leaving no descendant or descendants the said property shall be divided

He

property and to make his home there. thereafter continued a resident of Middletown, living upon real estate included in said thirteenth paragraph, and was thereafter continuously in posession and control of such real estate, including that in question in this action, until October 31, 1905, when he conveyed the same to the plaintiff by warranty deed. He has ever since continued in possession of all of the balance of said real estate.

Prior to the execution and delivery of his deed to the plaintiff, the defendant received from his three brothers named in said paragraph, all the heirs at law of Mrs. Rand, all the heirs at law of her brother D. C. Rand and of Jane S. Smith, both then deceased, and from Catherine H. Carnahan, then living, but since deceased, and all of her children, who proved to be her heirs at law at her death, a quitclaim deed purporting to convey to him all the right, title, and interest in said premises which each of said persons respectively had, ought to have, or might thereafter have. At the time of the execution of this quitclaim deed, none of the grantors therein resided in either Middletown or Rockfall, and no one of them has ever resided in either of those places, or made any claim of a present or prospective interest in said property.

Bertrand E. Spencer, of Middletown, for plaintiff. Wesley U. Pearne, of Middletown, for defendant.

PRENTICE, C. J. (after stating the facts as above). The defendant is the first named of the four nephews of Lucia A. Rand who were made beneficiaries under the thirteenth paragraph of her will. At the time he gave to the plaintiff the deed in question, he had acquired all the right, title, and interest which his three brothers, the heirs at law of the testatrix, the heirs at law of D. C. Rand and Jane S. Smith, both deceased, and Catherine H. Carnahan, now deceased, and her heirs at law had, or ought to have, or might thereafter have in or to the land conveyed.

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

"The testator's intention may be shown by necessary implication, as well as by the express language of the will, so that the essential words of inheritance, though entirely absent, may often be implied if the testator's manifest intent makes it necessary." Minor & Wurts on Real Property, § 171.

If his conveyance failed to give a good title | nym such as "issue," "descendants," "seed," to the plaintiff, it must have been for the or "offspring," can supply its place. This reason that some outstanding interest or pos- strict rule is relaxed as applied to devises, so sible future interest was not gathered up in that a devise to A. and his "issue," or "dethe quitclaim to him. Those conveyed cov- scendants," or "seed," or "offspring" may ered the entire field of possible interest, as suffice to create an estate tail, and one may well as some impossible, save that which is be created even where words of inheritance occupied by the surviving descendants of the are absent, if the testator's intent to that four nephews. These nephews are still liv- end is apparent. ing. Their surviving descendants cannot therefore be known, and there has been no attempt to acquire any interest that their prospective surviving issue might have. If the terms of Mrs. Rand's will are such that the surviving descendants of her nephews, as they shall prove to be or some of them, may thereunder have an interest in the property in question then the plaintiff's title is not the good indefeasible title in fee simple which the defendant warranted that he gave. [1] In so far as the testatrix attempted to make a devise in favor of these surviving descendants, the provisions of her will to that end are nugatory as being in contravention of the statute against perpetuities in force when the testatrix died. In the capacity of heirs there could have been no present interest or future possibility of interest in these descendants not subject to alienation by the ancestor except through the operation of an entail. Counsel for the plaintiff concedes that this is so. His fundamental contention is that the testatrix intended to and did create a fee tail in one of the four nephews. Upon this proposition followed by the unquestionable secondary one that the issue of a tenant in tail has no strict legal right in the entailed estate until after his death and nothing which they can convey, his entire argument is founded, as it needs must be. Comstock v. Gay, 51 Conn. 45, 62; St. John v. Dann, 66 Conn. 401, 408, 34 Atl. 110.

[2, 3] In this state we have never recognized the conditional fee of the English common law, nor adopted into our law the statute de donis conditionalibus. From the earliest times it has been held in this jurisdiction that words appropriate to the creation of an estate tail vest a fee simple in the issue of the first donee in tail; such issue taking no interest in the land during the life of the donee, and the donee having no alienable interest beyond a life interest. Swift's Digest, I, 79; Hamilton v. Hempsted, 3 Day, 332, 333; St. John v. Dann, 66 Conn. 401, 407, 34 Atl. 110; Comstock v. Comstock, 23 Conn. 349, 351. This principle was in 1784 enacted into our statute, now section 4027 of the Revised Statutes.

[4, 5] Estates tail may indeed be created in this state, and language which would create them at common law will do so here. Our ancient rule and confirming statute simply defined the legal character of such estates. They are estates of inheritance. For their creation by deed it is held that the word "heirs" is indispensable and that no syno

This relaxation, in the case of devises, of the strict rule applicable to conveyances results from a recognition that in a matter of testamentary disposition the testator's intent should be effectuated. Application of this principle has been made by us upon several occasions when estates tail by implication have been recognized. Dart v. Dart, 7 Conn. 250, 253; Hudson v. Wadsworth, 8 Conn. 348, 357; Williams v. McCall, 12 Conn. 328, 329; Comstock v. Comstock, 23 Conn. 349, 351; Turrill v. Northrop, 51 Conn. 33, 36; Horton v. Upham, 72 Conn. 29, 31, 43 Atl. 492.

[6, 7] In the present instance the word "heirs" does not appear in the thirteenth paragraph of the will until the final limitation over after the provisions in favor of the four nephews and their descendants. That fact, however, is not one, as we have seen, of controlling importance. The controlling fact is the testatrix's intent as to the estate attempted to be created by her as ascertained from the language of her will and the surrounding circumstances. Turrill v. Northrop, 51 Conn. 33, 39; Bullock v. Seymour, 33 Conn. 289, 294. Did she intend that her nephews should take as donees in tail and their descendants by inheritance from their ancestor, or that the nephews should take estates for life and their surviving descendants a remainder over by purchase? If the latter, there was no estate tail. The heirs or issue of a donee in tail take by inheritance only.

The answer to this test question is plainly indicated by the language of the will. The successive conditional devises are made to several nephews, with limitations over upon failure of surviving descendants. Had the will stopped there with a devise of an estate of inheritance absolute, cut down by a later provision for a gift over upon failure of issue, there would be substantial ground for the contention that an estate tail general was created. Of this character are the Connecticut cases already referred to. But the will did not stop there. It did not leave the inheritable estate in the donee to operate in so far as it was not restrained. The testatrix went on to expressly and directly provide for the contingency of descendants surviving, as she also did for the alternative contingency of nonsurvival. She directed that, if any

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