DELAWARE TRUST CO.
YOUNG et al.
David F. Anderson (of Berl, Potter & Anderson), Wilmington, for plaintiff.
Percy Warren Green, Wilmington, for defendant Horace Edgar Quillen.
Thomas Cooch (of Morford, Bennethum, Marvel & Cooch), Wilmington, for defendants Augusta Brodes, Annie M. Eskridge, Jasper Neal, Luther Neal, and Myron McKim, Jr.
H. Albert Young, Atty. Gen., and Stephen E. Hamilton, Deputy Atty. Gen., for defendant H. Albert Young.
BRAMHALL, Vice Chancellor.
Edith Bryan Quillen died a resident of Kent County, Delaware, on August 5, 1948. In Item 2 of her Last Will and Testament she devised a certain parcel of real estate in the Town of Harrington to her husband, Horace Edgar Quillen, for and during the term of his natural life. Upon his death she devised said real estate to The First National Bank of Harrington, in trust for the uses and purposes 'set forth in Item _____ of this Will'. In Item 9 of the Will the residuary estate is bequeathed to the said First National Bank of Harrington as trustee to pay an annuity for life to one Caroline S. Devereaux. In Item 10 testatrix directs that upon the death of said Caroline S. Devereaux the trustees shall pay three-quarters of the trust fund to two named charities. As to the other one-quarter part of said trust fund, she provided as follows:
'(a) I order and direct that one-fourth part of said fund shall become a part of the Educational Trust created or established out of moneys received from the estate of my husband, Horace Edgar Quillen, and my trustee is hereby ordered and directed to pay, transfer or convey said one-fourth part unto the Trustee of said Educational Trust.'
The First National Bank of Harrington renounced as trustee and thereafter on December 21, 1950, the plaintiff was appointed [33 Del.Ch. 359] as trustee to administer the trust. Under Item 4 of her Will, Mrs. Quillen provided that if her husband predeceased her and he had left certain property to her under his Will, then she bequeathed such property to two brothers of her husband 'with the utmost confidence in them or either of them, that they will create or establish certain charitable trusts, the plans for which they are acquainted and which are set forth in a letter addressed to them which will be found in my safe deposit box in The First National Bank of Harrington'. Since the husband of testatrix survived her, this provision never became operative.
Because of difficulties arising as to the interpretation of these items of the will of testatrix, the trustee has filed its complaint, asking this court to construe these provisions. Several questions are presented for determination:
1. What disposition should be made of the remainder interest in the real estate devised under Item 2?
2. Should the provisions of Item 10(a) be administered cy pres?
3. If the doctrine of cy pres is not applicable, what disposition shall be made of the property referred to in Item 10(a)?
1. I shall first consider Item 2 of the Will, in which certain real estate is left to the husband of testatrix for life and upon his death to The First National Bank of Harrington as trustee for the uses and purposes set forth in an unnamed item of the Will.
The only other trust created or referred to in the Will in which The First National Bank of Harrington is designated as trustee is in Item 9. Under Item 9 the residuary estate is bequeathed to the said
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