## Facts

- Brainard Warner’s will placed the residue of his estate in trust.
- During the life of his widow, Mary Warner, the trustee was directed to pay the net trust income in equal shares to Mary and Brainard’s nine children.
- The will provided that, at Mary’s death, the trust would terminate and the principal would be distributed to the nine children in equal parts.
- The will expressly stated that if any child died before Mary leaving issue, that issue would take the deceased child’s share of income during Mary’s life and, at Mary’s death, would take the deceased child’s share of principal.
- The will also stated that if any child died before Mary leaving no issue, the deceased child’s share of income would be reallocated among Mary and the surviving children.
- The will did not state who would take the deceased child’s share of principal if the child died before Mary without issue.
- Two children, Andrew Parker Warner and Rebecca Warner, survived Brainard but died before Mary and left no issue.
- The trustee sought instructions on how to distribute the trust principal at termination with respect to Andrew’s and Rebecca’s shares.
- The district court concluded that the will “should have” treated principal the same as income in the childless-death clause and, in substance, supplied a missing reference to “principal,” distributing those shares to Brainard’s lineal descendants rather than through Andrew’s and Rebecca’s estates.
- Jennie M. Warner, Andrew’s widow and devisee under his will, appealed, contending Andrew’s remainder in principal vested at Brainard’s death and was not divested by Andrew’s death without issue before Mary.

## Issues

1. Whether the nine children’s interests in trust principal were vested remainders at Brainard Warner’s death, or were contingent on surviving the life tenant (Mary).
2. Whether the will implied a divestiture (or cross-remainders) of principal when a child died before Mary without issue, based on the will’s express reallocation of that child’s income share.
3. Whether a court construing a will may supply an omitted provision—effectively inserting “principal” into a clause that expressly reallocates only income—to keep the property in the testator’s bloodline.

## Decision

- The D.C. Circuit reversed the district court and remanded.
- The court held that each child who survived Brainard took a vested remainder in an equal share of the trust principal at Brainard’s death.
- The will expressly changed the course of distribution of principal only in one stated situation: when a child died before Mary leaving issue (in which event the issue took the child’s share).
- Because Andrew and Rebecca died before Mary without issue, the stated substitutionary gift to issue did not apply, and there was no expressed provision divesting their vested principal interests.
- The court rejected the district court’s approach of treating the will as if it contained an additional divesting clause for principal matching the income clause.
- Andrew’s share of principal was therefore transmissible through his estate and passed under his will to Jennie M. Warner.

## Legal Principles

- A remainder is presumed to vest at the testator’s death unless the instrument clearly makes survival to a later time a condition to taking.
- Divestiture and forfeiture are not inferred from silence; a condition that cuts off a vested interest must be stated with clarity in the will.
- A court construing a will may interpret ambiguous language, but it may not reform the will by adding a new dispositive term or by supplying an omission based on speculation about what the testator likely intended.
- Where a will uses different rules for income and principal, courts treat that difference as intentional absent clear language indicating the same rule applies to both.

## Conclusion

Warner held that Brainard Warner’s children who survived him received vested remainders in the trust principal, and the will did not divest those principal interests when a child later died without issue before the life tenant; accordingly, Andrew Parker Warner’s principal share passed under his will to his widow rather than being redistributed among other family members.


Warner v. Warner, 237 F.2d 561 (1956)