Westphal v. Westphal

TRAYNOR, J.

John C. Westphal died testate March 9, 1912, leaving five sons surviving him, Theodore, William, George, Fred and John G. Jr. Under his will Theodore, William and George were each to receive an undivided one-fifth of his estate. The remaining two-fifths was given to Theodore and George in trust to pay the income therefrom to Fred and John C. Jr. for life.

The will provided that “In the event of the death of my said son, John C. Westphal, Jr., after my death, I direct that one-half (%) of said fund and property so held in trust, as aforesaid, (the income of which is directed to be paid as aforesaid) immediately vest in, and I hereby give, devise and bequeath to the widow and children of said John C. Westphal, Jr., share and share alike, a vested remainder in fee in and to one-half (%) of said property so devised in trust, as aforesaid, and, if he leaves no wife surviving him, then said one-half (%) of said trust property shall vest in, and I hereby give, devise and bequeath to the children of said John C. Westphal, Jr., by right of representation, a vested remainder in fee in and to one-half

(y2)

of said property so devised in trust as aforesaid. In the event that said John C. Westphal, Jr., should die leaving no wife surviving him and leaving no children and having no children of a deceased child or children, then I direct that said one-half (%) of the said trust property shall immediately vest in Theodore Westphal, William Westphal, and George Westphal, named hereinabove, share and share alike, and to their heirs respectively, and, in that event, I do hereby give, devise and bequeath to said Theodore Westphal, William Westphal and George Westphal, share and share alike, and to their heirs, respectively, a vested remainder in fee in and to said one-half (y2) of said property so devised in trust, as aforesaid, to take effect in possession immediately upon the termination of said trust, as provided in paragraph four of this will.” A similar provision governed the interest of Fred Westphal. The will also provided

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that if any child contested the will, he should take nothing, and the share given to him in trust or otherwise should go to the testator’s other children.

In March, 1912, the will was admitted to probate. In March, 1913, John C. Westphal, Jr., and Fred Westphal filed a petition to revoke the probate of the will, and on June 18th of that year dismissed their petition. On June 24, 1913, Theodore and William Westphal filed, as executors of the estate, a verified petition requesting final distribution of the estate to themselves and to George Westphal on the ground that John C. Westphal, Jr., and Fred Westphal, having contested the will, forfeited their interests in the estate. On July 28, 1913, the probate court entered its order for a decree of distribution in accordance with the petition, but made no reference to the interest of the widow and children of John C. Westphal, Jr.