Before DUFFY, Chief Judge, and SWAIM and SCHNACKENBERG, Circuit Judges.
SCHNACKENBERG, Circuit Judge.
Abby Beveridge Baum, herein referred to as Mrs. Baum, on behalf of herself and as next friend of her minor children*fn1 and "as representative of all other issue of Catherine Eddy Beveridge", herein referred to as Mrs. Beveridge, on September 28, 1951 filed a complaint (which was later amended), in the district court naming as defendants Continental Illinois National Bank and Trust Company of Chicago, as successor trustee*fn2 under the last will and codicil*fn3 of Abby L. Eddy, deceased, herein referred to as testatrix, The Presbyterian Hospital of the City of Chicago, Mrs. Beveridge, Spencer Eddy, Albert J. Beveridge, Jr., and Albert J. Beveridge, III, Elissa Beveridge and Franklin Beveridge, minors, praying for a construction of the will and for other relief.
Answers were duly filed by the successor trustee, Presbyterian Hospital, Albert J. Beveridge, Jr., and guardians ad litem for infant defendants.
Mr. Baum filed a motion for partial summary judgment, supported by an affidavit of her attorney, Thomas H. Fisher. Thereupon the trustee filed a crossmotion for a summary judgment on the whole case, supported by an affidavit of one of its officers.
On December 9, 1954, the district court entered the summary judgment from which the present appeal is taken.
We now state undisputed facts which are relevant.
Testatrix executed her will and codicil on October 15, 1907. She died on January 2, 1909.
At the time she made the will her living lineal descendants were: Spencer Fayette Eddy, her son, his son Spencer Eddy, and Mrs. Beveridge, her daughter. At the date of her death these three persons were still living and in addition Albert J. Beveridge, Jr., son of Mrs. Beveridge, was living. In 1939 Spencer Fayette Eddy died. Since the death of testatrix the following lineal descendants of Mrs. Beveridge have been born and are still living: Abby B. Baum, her daughter, the latter's three minor children above referred to, and also the said Albert J. Beveridge, III, Elissa Beveridge and Franklin Beveridge, children of Albert J. Beveridge, Jr.
By her will, testatrix created the trust now under consideration. The following provision inter alia appear in the will:
"Fourth: * * * Said Trust estate shall be held for the equal benefit of my two children, Spencer Fayette Eddy and Catherine Eddy Beveridge, and the net income derived from each beneficiary's share of said trust estate shall be paid over to him or her quarterly. One half of the principal of each beneficiary's share of said trust estate shall be paid over and delivered to him or her respectively upon his or her attaining the age of forty (40) years, and the residue of his or her share of said trust estate shall continue to be held by said trustee for and during the life of each of said beneficiaries, respectively. Said Trustee shall keep full and complete accounts, showing all transactions in relation to said trust estate, and at least as often as once in each year said Trustee shall furnish to each beneficiary a written statement showing the condition of his or her share of said trust estate, and all transactions relating thereto subsequent to the last previous statement furnished to each beneficiary. Upon the death of either of my said children, leaving issue him or her surviving, his or her share of said trust estate shall belong and go to and vest in such persons and in such shares and subject to such trusts as her or she shall designate or appoint by his or her last will or testament, and in default of such appointment or disposition by will the same shall go to and vest in his or her surviving issue. If either of my said children shall die leaving no issue him or her surviving, but leaving him or her surviving either the other of my said children, or surviving issue of such other child, then and in such case the share of the child so dying shall in the event that my other child shall then be living be held upon the same trusts and for the same uses and purposes as the share of said trust estate originally held for the benefit of such other surviving child; and in the event that my other child shall not then be surviving, but issue of such other child shall then survive, then and in such case the share of the child dying without issue shall go to and vest in the surviving issue of my other child, per stirpes: Provided, however, that if either of my children shall die before attaining the age of forty (40) years, leaving no issue him or her surviving, such child so dying shall have full power and authority to dispose of one half of his or her share of said trust estate by his or her last will and testament.
"Fifth: In the event that any of my estate shall be or become intestate under the foregoing provisions of this will, (by reason of the death of both of my children now living, without issue them surviving), then and in such case I give and bequeath all of such intestate estate to the Presbyterian Hospital of Chicago, * * *.
"Sixth: It is my will and I direct that neither of my children shall have the power or authority to anticipate, assign or dispose of any income or interest in any property held in trust for him or her under the provisions of this will, and that the same shall not be liable to be taken from him or her by process of law, it being my intention by the trusts created by this will to provide a suitable provision for the support and maintenance of my son and daughter and their respective families, if ...