Van Wyck v. Union Tr. Co. of S.F.

Henry L. Van Wyck died testate December 3, 1917, leaving as his heirs at law a son and a daughter and two minor children of a deceased daughter by the name of Potter. His will was duly probated and his estate administered upon, and the executor, a trust company, petitioned in due course for distribution in accordance with the terms of the will. The two Potter children contested distribution in this manner, claiming that the will omitted to make provision for them and that it did not appear that such omission was intentional, so that under our statute they were pretermitted heirs and entitled as such to take one-third of the estate by way of inheritance. The son and daughter also each contested distribution in accordance with the terms of the will, claiming that the trust created by the will as to the residuum and bulk of the estate was void as suspending the power of alienation for a period not permitted by our statute. Upon these contests the probate court held that the Potter children were pretermitted heirs and entitled to one-third of the estate as such, but that the trust created by the will was valid, and made its decree of distribution accordingly. From the portion of the…

[5] Since the rendition of the foregoing opinion it has been brought to our attention that while the decree appealed from directs distribution to the "Union Trust Company upon the trust provided by item VI of the will, the section providing for the sister of the testator, which trust we hold to be valid, as well as upon the trusts provided in the other sections of the will which we hold to be invalid, the testator's sister had died subsequent to his death but before the making of the decree, and that that fact is found by the decree of distribution itself. The result was, of course, that the trust provided for in item VI had terminated before the making of the decree, and the decree should not have directed distribution upon that trust, but should merely have distributed to the heirs or successors of the sister the income to which she was entitled under item VI between the death of the testator and her own. Misled by the decree, the incorrect character of which in this respect was not called to our attention, we directed distribution to the trustee named upon the same trust. This error in the decree, also, *Page 65 should be corrected. It is therefore ordered that our judgment be…