The plaintiffs have well summarized the situation presented by this reservation in two statements, as follows: *Page 509
1. Whether Annette's marriage was such a marriage in time or circumstance as the testator meant to refer to in subdivision (4) of the seventh clause of the will, and if so, whether the duty of the trustees is to turn over the corpus of the trust property to Annette, or whether Annette only has a life interest, involving a continuation of the trust.
2. Whether the expenses and counsel fees of these proceedings should have been thrown on the entire estate of the testator, or whether the one-fourth share of the residuum in which Annette is interested ought to bear them.
That the controversy between Annette and the trustees should be determined by the intent of the testator, if such intent can be found in the will, is unquestioned. It is apparent that when a testator makes a will in the belief that a certain state of facts exists which he provides for, and when it later appears that the state of facts he then believed to exist did not exist, and his death occurs before he learns of the actual situation, it is inevitable that his will ordinarily does not provide specifically for the unknown state of facts. If he makes provision for a certain contingency, as for the marriage of a daughter whom he believes is unmarried, and it appears after his death that the daughter was in fact already married when he made the will, this fact could not reasonably be deemed to necessarily nullify the provision in the will which was to become operative on her marriage.
In such a case the will is to be examined to discover, if possible, whether such a prior marriage is a marriage which falls within the intent of the testator when he made the provision.
We are therefore to seek to discover in this case whether the marriage of Annette in 1899, which was unknown to her father when he made his will in 1916, *Page 510 and when he died in 1919, could reasonably be deemed to be such a marriage as he provides in his will shall determine Annette's right to have the corpus of the trust in her favor turned over to her. What does the marriage of Annette signify as used in the will? It does not signify a marriage to any particular person, or any particular kind of a person, or a marriage adapted to any particular result, beyond the possible protection and advice incident to having a husband. That is, it is not a marriage insuring either issue, or independent support, or any type of husband. Marriage implies merely the existence of the state of being married. The will says: "In the event of the marriage of my said daughter Annette . . . then I direct that said trustees shall pay over and deliver to her the whole amount of said trust fund as soon after her marriage as may be convenient and reasonable, and upon such payment said trusts shall forever cease and determine."
The testator's intent is clear, not to make restrictions as to her marriage. His intent seems to be clear also to make all daughters, if married, stand upon an equality in sharing his estate. The provisions of clause seven disclose this.
It seems highly unreasonable to hold that the testator's intent must be confined to a subsequent marriage, in view of his total lack of restrictions as to the kind of a husband that he meant her to marry. Deeming that by the words "event of marriage" the testator meant merely the existence of a state of marriage, his intent to that effect would include the effects of a prior as well as a subsequent marriage.
We think the terms of the will disclose an intent that when Annette is found to be a person in the state of marriage, she is entitled to the corpus of the trust fund provided in the seventh clause of the will. *Page 511
Questions one, four and six should be answered "Yes."
Question two should be answered "Yes, the whole net amount."
Questions three and five should be answered "No."
As to question seven, the expenses should be borne by the entire estate.
In this opinion the other judges concurred.