This section contains the nature of the case and procedural background.

Joseph devised property to his wife Jane for life with the testamentary power to appoint to his nieces and nephews. Jane appointed to three of the nieces and nephews and to the issue of any of the three who may predecease her. All three of the nieces and nephews died before Jane. Only one had a child named Josephine. The trial court decreed that Josephine took one-third and that the devises of the other appointees failed by reason of their deaths in Jane's lifetime and that the remaining two-thirds of the estate was intestate. The fourth clause in the will was technically invalid as it appointed to the issue of the nieces and nephews. But, the trial court held that this was permissible by statute; sections 5226 and 5238. This appeal resulted.

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