Bailey v. Wagner

Dunkin, Ch.
delivered the opinion of the Court.

This Court is of opinion, that the decretal order in relation to the children of Charles Wagner must be modified — only such children as were in esse at the death of the testator, and such as were born within one year after his death and were alive at that time, are entitled to take; and a reference is directed to the Master to ascertain and report, as to those who fall within this description.

A majority of the Court is also of opinion that it is the duty of the executors to invest the legacy bequeathed to the children of Charles Wagner as provided by the will, and when a guardian shall have been appointed, to transfer the capital to such guardian.

In all other respects the decree of the Circuit Court, as also the decretal order of the 9th July, are affirmed, and the appeal dismissed.

JohnstoN, Ch. Caldwell, Ch. Dargaw, Ch. concurred.

Decree modified.