concurrence">Allen, J.

(concurring): The will was dated November 21, 1925. The unborn child mentioned in the will died at birth. The testatrix died December 12,1939, and was survived by her husband.

The second clause of the will disposed of the property therein described in the following language: “This I bequeath to my husband, Gilbert C. Whitsitt, to do with as he pleases so long as he shall live. In case my husband shall die and our unborn child should die also” then the property was to go to the mother and to the brother and sister of the testatrix as provided in the latter portion of the paragraph.

Manifestly the chief concern of the testatrix was to provide for her husband and the unborn child.' If both survived the testatrix they were to have the property. If either the husband or the child died before the testatrix, the property was to go to the survivor. If both died before the testatrix then the gift over to the mother and to the brother and sister was to become effective. The gift over was a substitutionary gift. The clear purpose was to avoid an intestacy. This seems to be the only reasonable construction to be given the words “in case my husband should die and our unborn child should die also.” Death of the husband and child in this clause is referred to as an event which might not occur. Since death itself is an event certain to occur, the contingency, thus provided for, can only exist with respect to some other event — and that other event must be the death of the testatrix. Clearly, the gift to the mother and to the brother *145and sister was to take effect only in the event the primary devisees, the husband and the unborn child, should both die before the testatrix. That contingency did not occur — hence the gift over failed.

If the foregoing analysis is correct it is unnecessary to determine whether the surviving husband received a life estate or an absolute interest under the will. If a life estate, the reversion passed by descent to the heir of the testator, and the husband was her sole heir. On either theory the surviving husband has the absolute interest in the property.

Citation profile

How this case has been treated — in progress