'I further hope, trust, and desire that in the event either one of my said nieces, daughters of the said Samuel Carusi, shall not survive my said brother Samuel, that the share she might become entitled to had she survived him may be conferred and fall to the surviving niece or nieces. In no event shall any portion of my estate be subject to the control or interference of any husband either one of my said nieces may have at the time of my decease or at any time thereafter.
'I give and devise to my three nieces, daughters of my brother Nathaniel Carusi, the sum of two thousand dollars, ($2,000.)'
By the third and last item of the will the testator appointed his brother Samuel Carusi the sole executor thereof.
Afterwards, on July 18, 1872, the said Lewis Carusi, as party of the first part, executed a deed of that date, which purported to convey to his brother Samuel Carusi party of the second part, in fee-simple, all his real estate in the city of Washington, upon trusts which were thus expressed:
'In trust, nevertheless, to, for, and upon the following uses and trusts, that is to say, in trust to sell and convey the whole or any part of the said piece or parcels of ground and premises, at the discretion of the said party of the second part, and to invest the moneys arising out of such sale or sales in other property or securities, for the use and benefit of the said party of the first part; and in event of the death of the said party of the first part, so much of said pieces or parcels of ground as may remain unsold, or such other property as may be purchased, or such securities as may be acquired, in manner aforesaid, to convey to such person or persons as the said party of the first part may, by his last will and testament, or other paper writing, under his hand and seal, by two persons witnessed, designate and direct.'
The appellant averred, and the defendants denied, that this deed had been delivered by the grantor to the grantee therein named. Subsequently, on October 17, 1872, Lewis Carusi executed and delivered to his brother Samuel Carusi another deed, conveying to him absolutely in fee-simple the same lands described in said will and in the deed of July 18, reserving to himself the rents and profits thereof during his life. On October 25, 1872, Lewis Carusi died, having made no will other than that of March 18, 1872, above mentioned. After the death of Lewis, Samuel Carusi took possession of the real estate described in said will and deeds, claiming an absolute title in fee-simple thereto, by virtue of said will and the deed of October 17, 1872, and continued in possession until his death. On March 23, 1877, he duly executed his last will and testament, by which he devised to his wife, Adelaide S.C.arusi, for her natural life, all his real estate, with remainder in fee at her death to his children, John McLean Carusi, Samuel P. Carusi, Thornton Carusi, Estelle Caulfield, Genevieve Carusi, and Isolina E. Howard, share and share and share alike, and appointed his wife, the said Adelaide S., and his son, the said John McLean Carusi, the executors thereof. Afterwards, on December 22, 1877, Samuel Carusi died, and on January 8, 1878, his will was admitted to probate and record in the orphans' court of the District of Columbia.