Baily's Estate

Dissenting opinion

Bolger, J.,

dissenting. — The majority’s chief difficulty lies in the casual attention it gives to the gift in remainder to St. Joseph’s Church. It states that this legacy is incidental to the gifts to testator’s brothers. To the contrary, I regard it as vital to the testator’s testamentary purpose, not so much as it benefits the church, but in that it serves as a key to or a limitation *301upon the extent of the interests given to the brothers. Were there no such gift in remainder, Jesse, the survivor, could now claim and would be entitled to be awarded all of the estate…