Estate of Ritzman

ANGELLOTTI, C. J.

This is an appeal by Eva E. Bike, one of the children of deceased, from a decree of partial distribution. The deceased died testate October 23, 1913. By his will, dated June 25, 1912, he declared that he had a wife, naming her, and six children, naming them. After directing payment of his debts and funeral expenses, he provided for his wife as follows:

“Third: I hereby give, devise and bequeath to my wife Sarah Ritzman all of the income and so much of the principal as may be necessary for her comfortable living and support so long as she lives, and my executors hereinafter named are directed to pay to her monthly sufficient funds for her

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living and support so long as she lives, and my executors hereinafter named are appointed trustees to hold and manage all of my property for the purpose of carrying out said trust, if any surplus over her living it shall he added to my estate.

“Fourth: Upon the death of my wife Sarah Ritzman I give, devise and bequest all the rest, residue and remainder of my property as follows: To be in six equal parts. One-sixth (%) thereof to my daughter Mary Auman, one-sixth (%) thereof to my daughter Eva E. Bike, one-sixth (%) thereof to my daughter Maggie Hoff, one-sixth (%) thereof to my daughter Lucy Matter, one-sixth (%) thereof to my daughter Cora Heiss, and the remaining one-sixth (%) thereof to my son William J. Ritzman.”

By the fifth paragraph he directed his executors to permit any heir indebted to him to continue owing the estate as long as the wife lives, keeping the interest paid, and on the death of the wife “to take such indebtedness out of the share due to such child.” The remaining provisions are not of importance here.

Lucy Matter, one of the six children, died. November 1, 1919, one day before the death of Sarah Ritzman, the surviving wife of deceased, who died November 2, 1919. On application for partial distribution the question of the effect of the death of Lucy Matter after the death of deceased and prior to the death of Sarah Ritzman, the wife, was presented. It was held by the trial court that under the terms of the will Lucy' Matter, upon the death of the testator, was at once vested with ownership of one-sixth of the property of the estate subject to administration and the disposition in favor of the wife for her life, and distribution of her share to the administrator of the estate of said Lucy Matter was made on this theory. The theory of appellant is that by the terms of the will the gift to each child was contingent upon such child surviving the wife, with the result that the gift to Lucy Matter lapsed upon her death prior to the death of the wife.