David L. Gilmore, Washington, for appellant.
Ross Armbruster, Alton (pro hac vice), for appellee.
Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, C. J., did not participate in the consideration or decision of this case. Pomeroy, J., concurs in the result.
On March 14, 1968, Ada M. Clarke executed a will. After small bequests to her children, she directed in paragraph Third that the rest of her estate be placed in trust
"for the following uses and purposes:
"The Trustee shall hold, manage, invest and reinvest said Trust Estate and shall distribute the net income . . . and principal from time to time as follows:
"(1) The principal shall be held in a single trust so long as any of my grandchildren, EVAN, MARGOT, CLAUDINE and JEAN, shall be under the age of twenty-five (25) years; and the Trustee shall use the income, together with so much of the principal as may in its opinion be advisable therefor, for the welfare, support and complete education of such of said grandchildren as shall need financial assistance, in the opinion of the Trustee. The trustee shall have complete discretion as to how much shall be used for each . . . .
"(2) As soon as none of said grandchildren is under the age of twenty-five (25) years, the principal and any accumulated income shall be divided into as many equal shares as there are of said grandchildren then living and said grandchildren then deceased with issue then living.
"(a) Any share so set apart for a deceased grandchild shall be transferred and delivered to such deceased grandchild's then living issue, per stirpes. . . .
"(b) Each share set apart for a living grandchild shall be transferred and delivered to him or her free of trust, and the trust shall terminate.
"(3) If no grandchild or issue of grandchild is living at the termination of the trust, then any remaining portion of the trust estate shall be transferred and delivered to those persons who would have been entitled thereto had I died at that time intestate."
At the time she executed her will, Mrs. Clarke had two sons, William and Richard. Richard had at that time
two children, Evan and Margot,*fn1 and William had two, Claudine and Jean.*fn2 Mrs. Clarke died on May 12, 1970. After her death, two more children were born to her son Richard, ...