Malcolm v. First National Bank & Trust Co. of Racine

1. Robert Malcolm’s claim. Paragraph Fifth, on its face, provides for a gift to Malcolm only upon the contingency that neither Mrs. McDowell nor Jerome survive the testator, and Jerome die without issue. Since both did survive, the contingency did not occur, and paragraph Fifth, according to its terms, never became operative.

Malcolm, however, argues that the intention of Mr. McDowell to benefit Malcolm in preference to all others except Mrs. McDowell, during her life, Jerome, and Jerome’s issue, is so clear that paragraph Fifth implies a gift to Malcolm on the contingency which did occur,…