Emma Heard, testatrix, a widow, died on November 23, 1939, leaving a will dated September 28, 1935. At the time of her death her blood relatives were a brother and a son, John, who was 42 years old, married to a woman 36 years old, but with no children. (He had been married before and divorced.) She left a small bequest to her brother and others including John, but the major portion of her estate she left to the Bank of America, National Trust and Savings Association (also named executor), in trust to pay from the income: $200 per month for life to John; $50 per month to Mrs. Cummings (testatrix' cousin) for life; $25 to one Rice for life; $50 to a servant, Eulalia, for life; $25 a month for the care of a dog; the remainder of the income was to be paid monthly to John "or if he be deceased, then to his lawful issue, if any, distributed per stirpes and not per capita" but if John should "leave no lawful issue at the time of his death" then the income shall be paid to May Cummings until her death and then to her "living issue."*fn1 If the income is not sufficient to pay all the payments above mentioned, the income should first be paid to John "or in case of his death to his lawful issue." If the income payable to John is not sufficient to provide for his needs, the trustee may make additional payments from the corpus and the same is true as to the "lawful issue" of John if he should die before the termination of the trust.
