I concur in the conclusion of the majority opinion that the decree appealed from should be affirmed. I think, however, that the provisions of the will detailed in the majority opinion may more properly be considered in construing other provisions of doubtful meaning than to make out a bequest by implication.
The application of grammatical rules to the language used by the testator in providing for the payment of the remaining one half of the balance of said income to Mrs. Jacobs makes it doubtful at least whether the testator used the phrase "during the lifetime of my said wife" as a limitation upon the time Mrs. Jacobs was to receive said income or used the phrase as part of the description of the portion of the income to be paid to Mrs. Jacobs. That, however, is not the only language used by the testator having a tendency to disclose his intention in providing for the payment of income to his daughter. The proviso immediately following the bequest to Mrs. Jacobs, which substituted the children of Mrs. Jacobs for her as income-takers in the event she predeceased the testator, disposed of said income for the duration of the trust. Also, the final proviso, which substituted Mrs. Jacobs for Mrs. *Page 332 Hocking and the children of Mrs. Jacobs for her as income-takers in the event Mrs. Jacobs survived Mrs. Hocking and thereafter died at any time prior to the termination of the trust, disposed of all of the income payable to Mrs. Jacobs under the foregoing provisions until the distribution date. These and other provisions of the will are relied upon by counsel for Mrs. Jacobs in aid of the construction of the language used as well as to make out a bequest by implication of one half of the net income to Mrs. Jacobs for the duration of the trust, if she lives that long.
A bequest will not be implied merely to avoid intestacy. The intent must appear from the will and not be founded merely on a construction based on silence, conjecture or the relationship of the parties. (Thompson, Wills [2d ed.] § 223.)
The contingency which actually happened of Mrs. Hocking predeceasing Mrs. Jacobs was not overlooked by the testator, for in that event he provided that the income payable to Mrs. Hocking should be payable to Mrs. Jacobs. Neither did he overlook the contingency of Mrs. Jacobs surviving Mrs. Hocking and thereafter dying prior to the termination of the trust, for in that event he provided that all income payable to Mrs. Jacobs "under the foregoing provisions shall be paid to her child or children" until the distribution date. The use of the phrase "all income payable to her under the foregoing provisions" indicates an intention to give to his grandchildren, after the death of their mother, the income originally given to his daughter as well as that which she is to take as a substitute for the annuitants and that which, it is conceded, she is entitled to as a substitute for Mrs. Hocking. If the original gift of income to Mrs. Jacobs lapsed upon the death of Mrs. Hocking, it became undisposed of income and would have to be disposed of as such, a result inconsistent with the *Page 333 testator's expressed intention to give said income to his grandchildren for the duration of the trust if his daughter survived his wife and thereafter died before the trust terminated. To carry out his plan of providing income for the group mentioned, the testator invested his trustee with the legal title to the real estate from which the money to pay the annuities and net income was to accrue. No part of the trustres could in any event revert to the estate of the testator. Every provision for the disposition of income, relied upon to explain the original gift to Mrs. Jacobs, tends strongly to indicate that the testator intended to dispose of all the income to accrue to the trustee from the trust res for the duration of the trust, and thought he had done so. All of the provisions substituting the children of Mrs. Jacobs for her as income-takers gave the income to her children for the duration of the trust, and the final proviso is so worded as to indicate an intention to apply it to all former provisions for the benefit of Mrs. Jacobs.
I think, however, the foregoing should be applied as an aid to a proper construction of the language used by the testator in bequeathing income to his daughter rather than to make out a bequest by implication. When so applied it clearly appears that it was the intention of the testator to give said income to Mrs. Jacobs for the duration of the trust, if she lives that long, with remainder to her children if she dies before the distribution date. *Page 334