Melville Fuller

“ Rhodes designed to dispose of her entire property; to provide for her husband by securing to him for life an income from one half of her estate; to provide for her son by leaving him the estate absolutely, subject to the husband's income; and, if her son died before his father, that the husband should have the income of the whole estate for his life, and at his death the estate should go to the Young Women's Christian Home. ”

“ Underwood, his heirs, etc., absolutely; and the will proceeded: ' (Subject to the estates and interests of my children therein, under or by virtue of the will of the said John Tulley, deceased.) And in case my said husband should die in my lifetime, then I devise, bequeath, and appoint the said hereditaments and premises, and sum and sums of money, and arrears of income aforesaid, unto and to the use of William Wing, his heirs, executors, administrators, and assigns, to and for his and their own absolute use and benefit.' And she appointed her husband and William Wing executors. ”

“ But the argument is that the testatrix's wishes cannot be carried out, inasmuch as it is insisted each of the devises and bequests was on the express condition of survivorship, and to give effect to the alleged intention would require the interpolation of some phrase covering the contingency of inability to ascertain survivorship, which interpolation would be wholly inadmissible. ”

“ And as the estates of persons perishing in a common disaster, intestate, notwithstanding the statutes of descent and distribution may not have made provision in respect thereof, are disposed of as if each survived as to his own property, we think, upon principle, that the property of Mrs. ”