The Federal Reporter with Key-Number Annotations, Volume 272: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States and the Court of Appeals in the District of Columbia, June-August, 1921. Page: 19
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CITY NAT. BANK V. SLOCUM lU
(272 F )
appointment which the grandmother made by her will, as we have
found her will to be, was within the limit of her discretion in the execu-
tion of this trust, it is not necessary to go further.
In determining the meaning of this phrase "keeping in mind," etc.,
we are aided by the facts that at the time of the grandfather's death
the mother was 32 years old, that Halliday was then her only child,
and that his father was, to some degree, improvident and unsuccessful.
The provision that after the mother had once made appointment by
will she might thereafter make substituted appointments as the cir-
cumstances might change shows that the grandfather had no hard
and fast plan in mind. We can think of no reason why the testator
should have wished to tie up the estate in the hands of his daughter,
except that he either distrusted her ability or her husband's influence,
or both, nor any reason why he should have wished it to be free from
restriction the moment it reached Halliday rather than to be tied up
for his hfe. The grandmother, who knew his wishes and who executed
her will very soon after his, has, by her action, declared that she
thought that she was complying with his wishes when she treated the
children of Halliday as within the class described by him as the issue
of the mother. Her action seems to us fully to satisfy the reasonably
probable intent of the grandfather and to be a fair exercise of that
discretion and judgment undoubtedly reposed in her.
There is nothing in the language of the devise which prevents this
conclusion. "Issue of the body" is commonly used in a less restricted
and technical sense than "heirs of the body" (Daniel v. Whartenbv,
84 U. S. [7 Wall.] 639, 643, 21 L. Ed. 661), and the word "issue" will
be construed to include grandchildren unless the circumstances other-
wise require (Adams v. Law, 58 U. S. [17 How.1 417, 421, 15 L. Ed.
149; Jackson v. Jackson, 153 Mass. 374, 26 N. E. 1112, 11 L. R. A.
305, 25 Am. St. Rep. 643: Jarman on Wills, vol. 2, p. 33; Page on
She was to "keep in mind the interests of" (among others) Halliday.
His best interests might require--as the event shows-protection
against himself. She had power to consume the estate for herself, to
divert it to charities, and to change her once-made disposition. This
power of change is almost meaningless, unless it refers to and reaches
successive and variant dispositions made while "keeping in mind,"
etc., and we think necessarily indicates that she might make discretion-
ary selection and inequality among the class of beneficiaries. Other-
wise the grandfather might as well have made direct devise to his
granddaughter and the issue of her body. Indeed, the very con-
cession by all parties that the power existed for the grandmother to
limit the mother's interest to a life estate rather than to make it a con-
ditional fee admits the power to make more definite the application of
the vague language of the supposed trust. No court can say that when
she made Halliday a trustee of the legal title for his children, and there-
fore entitled to the possession and use of the farm only in their right,
she was not "keeping in mind the interests of" the issue of her daugh-
ter, within the intent of the grandfather.
 This construction of the grandfather's will as supplemented by
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The Federal Reporter with Key-Number Annotations, Volume 272: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States and the Court of Appeals in the District of Columbia, June-August, 1921., legislative document, 1921; Saint Paul, Minnesota. (digital.library.unt.edu/ark:/67531/metadc38843/m1/41/: accessed January 21, 2018), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.