222
THE GREEN BAG
"that if any grandchild of mine entitled or who may become entitled to a share of the trust estate under the foregoing limita tion shall die without having attained a vested interest in a share of the trust estate, leaving issue surviving him or her, then and in such case the share or shares hereinbefore limited to such grandchild shall be held in trust for the absolute use and benefit of his or her child or children living at the death of such grandchild and the child or children then living of any such child or children then dead, and if more than one in equal shares per stirpes." Finally, the testator concludes, "In case I should have no child or more remote issue who under the trusts herein before contained shall live to acquire a vested interest in my said residuary estate, then it is my will that the whole of said residuary estate shall after the death or re-marriage of my said widow be transferred to" — Well, to whom? The draughtsman doesn't care. What, then, does the testator desire? Shall it be to a favorite charity, or to those who would be his next of kin had he died at that time, or shall it be half to one and half to the other as in the case of the will of the late founder of the Newberry Library of Chicago? Whichever plan be adopted — the one where the gift is vested or the one where it is contingent — the provision for the chil dren and other issue is very incomplete. As none are to take till they reach twentyfive (except in case of great-grandchildren) •what is to happen between the termination •of the widow's interest and that time? •Obviously the income upon the vested or •expectant share of each child or grandchild is to be used for its maintenance and edu cation. This is accomplished by providing generally that during the time that the in come of all or any part of the trust estate shall not be payable to any person for life or otherwise under the trusts created and in respect to which the time shall not have come for a final distribution according to the terms of the trusts,
"the said trustees shall apply the whole, or such part of it as to them or him shall seem best, of the income thereof for or towards the maintenance and education of such person or persons under the age pre scribed for the payment of the principal of or the vesting of a share or interest in the trust estate until he or she or they shall become entitled to the transfer of the prin cipal of or acquire a vested interest therein under any of the trusts, powers, and pro visions hereinbefore contained; and the trus tees may themselves so pay or apply the income or any part thereof or may pay the same to the parent or guardian or guardians of such person or persons who have not attained the age prescribed for the payment of the principal of or the vesting of a share or interest in the trust estate for the pur poses aforesaid, without seeing to the appli cation thereof." Suppose then that the trustees cannot spend all the income of the vested or expectant share upon some one or more of the children or grandchildren, what shall be done with the balance? If the share is vested then the income would at least be accumulated and paid over when the time for distribution arrives. On the other hand, if the gift be contingent, the trustees would, if nothing more were said, be obliged to add the unex pended portion to the whole estate, so that it would ultimately be divided equally among all who took. That would be saving from Peter to pay Paul. The following clause should, therefore, be added where the interests are contingent: "And so much of any of the income arising from the presumptive or expectant share of each such child, grandchild, or other issue, respectively, under the trusts hereinbefore contained, as shall not be so applied as afore said, shall be improved at interest and accu mulated, and the accumulations thereof shall be added to the principal of the share whence the sum shall have arisen; with power never theless in the said trustees, if they shall deem it expedient so to do to apply such accumu lated fund or any part of the same in and for the maintenance and education of the child or children from whose presumptive or expectant share or shares, respectively, the same may have arisen, during any sub
