Estate of Wyss

This is an appeal from an order in a probate proceeding denying the petition of the widow of the decedent to have set aside to her a probate homestead. Fred J. Wyss died on April 19, 1928. His will was admitted to probate on May 11, 1928. In this will, dated July 11, 1925, the testator devised and bequeathed to a named trustee “all of my property both real and personal of whatsoever kind or character and wheresoever situated,” to be held in trust upon certain conditions which need not be here fully detailed. In general, it may be said that under the trust provisions the net income of the estate was to be paid to decedent’s wife and daughter, $250 per month to the wife, $100 per month to the daughter, and the entire balance of the net income to the wife, the $250 monthly payment to the wife having a priority over any payment to the daughter. The will also provided that in the event of the death of both the wife and the daughter, without the daughter leaving issue, then one-half of the entire estate should go to the legal heirs of the wife and the other half to the legal heirs of the testator. The will then contained a paragraph reading as follows:

There was attached to this will,…