Opinion
May, 1906.
John A. Holzapfel, for accounting executors.
George M. Schuzel, for Emma and Maud Blake.
Joseph J. Hood, special guardian.
Under the will in question the property on Lynch street was given in trust during the term of the lifetime of testator's wife Esther. By the fifth paragraph of the will there was a provision, however, authorizing the sale of said house during the wife's lifetime and providing for the division of the proceeds upon such sale. It is unnecessary to construe the effect of this provision, as it appears that such house was not sold in pursuance thereto.
By the sixth paragraph of the will, upon the death of his wife the said house and lot was to be sold by his executors who were given power of sale to accomplish this result. From the proceeds of said sale $500 was directed to be given to the testator's son John, with the proviso that in the event of his death the same should be held in trust. Said son John is living and, therefore, entitled to such sum of money.
There is no provision made, however, for the distribution of the balance of the proceeds of such sale and, consequently, the testator as to such amount is to be presumed to have died intestate and the same should be distributed in accordance with the statute.
Let decree provide accordingly.
Decreed accordingly.