MATTESON, J. This is a bill for instructions. The complainant is trustee appointed by decree of this court, under the will of Oliver C. Wilbur and Lucy A. Wilbur, his wife, both of which bear date June 25, 1878. As such trustee, he has propounded to us certain questions involving the construction to be given to said wills. The portions of the will of Lucy A. Wilbur material to be considered are as follows, viz.:
"I give and devise unto Oliver C. Wilbur, my husband, his heirs, executors, administrators, and assigns, all my right, title, and interest in, [follows a description of the property,] in trust, for the said trustee, and other the trustee or trustees for any time being, to take possession and charge of all said trust property and estate, and to receive and collect all the income of said trust property and estate, and, after paying therefrom all sums necessary
for taxes and other expenses, and all such other sums as may be required for the proper care and management of said trust property and estate, and for the execution of the trusts hereby created, including a reasonable compensation for services as trustee, to pay over the residue of said income as and when received, in the following manner, viz.: To Marcy G. Greene, wife of Henry L. Greene, one-fourth part; to Geo. A. Wilbur, son of Oliver C. Wilbur, Jr., deceased, and William A. Wilbur, son or Oliver C. Wilbur, Jr., deceased, one-fourth part; to Richard H. Whittier, son of Lucy A. Whittier, deceased, one-fourth part; to Geo. G. Wilbur, one-fourth part: provided, nevertheless, that if, at any time, the said Geo. G. Wilbur shall alien, incumber, or anticipate the said income, or any part thereof, or if, by reason of his insolvency or bankruptcy, or by any attachment or other proceeding by creditors or other cause whatsoever, said income, or any part thereof, shall, or but for this present proviso would, become vested in or payable and puss to or for the benefit of any other person other than the said Geo. G. Wilbur, then the said Geo. G. Wilbur's right to and interest in said income, or so much thereof as shall, or but for this present proviso would, so become vested in or payable, and pass to or for the benefit of any other person, shall thereupon forthwith cease and determine, and thereafter, during the remainder of the life of said Geo. G. Wilbur, the said income, or so much thereof as shall have become so forfeited or lost by the said Geo. G. Wilbur, shall, by the said trustee, be paid to, and shall be received by the children of Marcy G. Greene, wife of Henry L. Greene, and to the children of Oliver C. Wilbur, Jr., deceased, and to the child of Lucy A. Whittier, deceased, to be divided equally among them, their heirs and assigns: provided, nevertheless, that it shall be lawful for the said trustee or trustees hereunder for any time being, at any time, or from time to time, during the life of the said Geo. G. Wilbur, and before the forfeiture or loss by him of said income, or any part thereof, as aforesaid, and after any such forfeiture or loss, upon his obtaining by law a full release and discharge from all his existing debts and liabilities for the time being, upon his request in writing, to convey, transfer, and deliver to the said Geo. G. Wilbur, his whole interest in said trust property, in fee-simple, for his own use, free and discharged of all trusts."
"I hereby appoint Marcy G. Greene, wife of Henry L. Greene, my residuary legatee, to whom I give and devise all the rest and residue of my estate, real and personal, of whatsoever nature, and wherever the same may be found, after paying all my just debts, and all the expenses in the settlement of my estate, and meeting all the provisions herein contained, to her, and to her heirs and assigns."
The portions of the will of Oliver C. Wilbur, material to be considered, are as follows, vizl:
"I give, devise, and bequeath unto ——, his heirs, executors, administrators, and assigns, all my interest in [follows a description of the property] in trust, for the said trustee, and other the trustee or trustees hereunder, for the time being, to take possession and charge of all said trust property and estate, and to receive and collect all the income of stud trust property and estate, and, after paying therefrom all sums as may be required for taxes and other expenses, and all such other sums as maybe required for the proper care and management of said trust property and estate, and for the execution of the trusts hereby created, including a reasonable compensation for services as trustee, to pay over the residue of said income, as and when received, in four equal parts, to George G. Wilbur one-fourth part; to Marcy G. Green, wife of Henry L. Green, one-fourth part; to Oliver C. Wilbur, Jr.'s, deceased, heirs, one-fourth part, and to Lucy A. Whittier's, deceased, heirs, one-fourth, to them, their heirs, executors, and assigns: provided, nevertheless, that if, at
any time, the said George G. Wilbur shall alien, incumber, or anticipate the said income, or any part thereof, of his portion, or by reason of his insolvency or bankruptcy, or by any attachment or other proceeding by creditors, or other cause whatever, said income, or any part thereof, of his interest, shall, or but for this present proviso would, become vested in or payable and pass to or for the benefit of any other person other than the said George G. Wilbur, then the said George G. Wilbur's right to and interest in said income, or so much thereof as shall, or but for the present proviso would, so become vested in or payable or pass to or for the benefit of any other person, shall thereupon forthwith cease and determine, and so much thereof as shall have become so forfeited be received by the children of Marcy G. Greene, wife of Henry L. Greene, and the children of Oliver O. Wilbur, deceased, and the child of Lucy A. Whittier, deceased, to them equally, and to their heirs and assigns: provided, nevertheless, that it shall be lawful for the said trustee or trustees hereunder, for time being, at any time, or from time to time, and before the forfeiture or loss by the said George G. Wilbur of said income, or any part thereof, as aforesaid, or, after the said forfeiture or loss, upon the said George G. Wilbur obtaining by law or otherwise a full release and discharge from all his existing debts and liabilities, for the then time being, upon his request in writing, to convey, transfer, and deliver to the said George G. Wilbur his interest in the above said income for his own...
