Howard C. Folsom Testator died in 1960, and was survived by six adult children. In Paragraph 3 of his will, he bequeathed a life estate in all of his property to Alma Louise Folsom A. Folsom, who was his mentally handicapped youngest child. He bequeathed the remainder in Paragraph 4, as follows: I give, bequeath and devise, at the death of A. Folsom, all of my property both real and personal to him or her of my children, or those of my children, who shall take care of A. Folsom during her lifetime, taking her into his or her home, or their homes, and providing the necessities of life to her. Should none of my children provide for A. Folsom, then said property to go to the person who does look after A. Folsom, even though he or she may be an outsider. From 1960 until 1973, A. Folsom lived in the home of her sister Lillian Rowell, now deceased, along with Ms. Rowell’s children Rowell heirs. From 1973 until 1994, A. Folsom resided with Mitchell Folsom M. Folsom, who was the widow of one of Testator’s sons. They first lived in M. Folsom’s home and then in the home place which was part of A. Folsom’s life estate. From 1994, when A. Folsom suffered a stroke, until her death in 2001, she resided with Linda Smith, a granddaughter of Testator, and was cared for by Ms. Smith and M. Folsom. Certain grandsons of Testator Folsom heirs, who are brothers, allegedly performed house maintenance and repairs for A. Folsom’s benefit, but they did not live with her or provide personal care. One of the Rowell heirs was appointed administrator de bonis non of Testator’s estate with the will annexed, and thereafter filed a motion for construction of Paragraph 4. The probate court transferred the case to superior court. The Rowell heirs and Ms. Smith, individually and in her capacity as executrix of the will of M. Folsom, now deceased, entered into a settlement with several other heirs, whose claims were subsequently dismissed with prejudice. The Folsom heirs did not settle their claims, and filed their own motion for construction of the will. Ms. Smith filed a motion for partial summary judgment, which was joined in part by the administrator.
Concluding that only the Rowell heirs could take under Paragraph 4, the superior court granted partial summary judgment in favor of the administrator, granted his motion for construction, denied summary judgment as to Ms. Smith, and denied the Folsom heirs’ motion for construction. After granting an extension of time to file a notice of appeal, the superior court denied Ms. Smith’s and the Folsom heirs’ motions for reconsideration. In its orders, the superior court held that the remainder interest was initially contingent, and became vested in Ms. Rowell when she took A. Folsom into her home, subject to partial divestment in favor of any other children of Testator who provided the requisite care; that such interest was not contingent upon the remaindermen surviving the life tenant, and could descend to their heirs at the death of A. Folsom; that the remainder interest of those other than Testator’s children could no longer vest once any of the children provided care; and, that the term “children” in Paragraph 4 did not include grandchildren such as Ms. Smith. The Folsom heirs appeal in Case Number S06A1980, and Ms. Smith appeals in Case Number S06A1981.
