In Re Estate of Fay

Appeal from decree of final distribution, and from an order denying appellants’ motion for a new trial.

The will of deceased was duly admitted to probate and bears date, “May twenty-fifth, eighteen hundred and fifty-nine.” It contains the following clause:

The court below found that Mary Montealgre (the only daughter of said deceased) died without lineal descendants prior to the death of deceased; that the provisions of the will above quoted are invalid, and the trust thereby attempted to be created is void, for the reason that the absolute power of alienation of the property therein mentioned is thereby suspended for a longer period than during the continuance of the lives of persons in being at the creation of such limitation or condition, or at the death of said testator, capable of taking the same under said provisions, and for the reason that there were and are no persons in being by whom an absolute interest in possession can be conveyed; that the period of the said trust expired and ceased prior to the death of the testator, and that said trust clause is void for uncertainty.

The deceased left surviving him his wife and two sons, Luke Pay and John Pay, his only children.…