Culhane v. Fitzgibbons

Gaynok, J.: The question is whether by the will of Mary Bond the title to the lot became vested in fee in Thomas F. Bond, or whether, on the contrary, there was a failure to devise the fee, in which case it descended to the three children [333] of the testator (Anne E., John J. and Thomas F.), in which case the two infant children of John J. Bond, who has died intestate, are the owners in fee of his undivided one third. By the third clause the lot is devised to the daughter Anne E. Bond “ in trust for Thomas F. Bond until he shall have attained the age of twenty one years;” by the fourth there is an identical bequest in trust of money; and by the fifth it is provided that “ In case of the death of my said son Thomas F. Bond without having lawful issue before he attains the age of twenty one years, then I desire that all the property real and personal which is hereby bequeathed to him, shall go to my said daughter Anne E. Bond or her heirs for her or their sole use and benefit.” There is here no devise or bequest in terms to Thomas F. Bond, but only to Anne E. Bond in trust for him until he comes twenty one. There is therefore no devise to him of the fee of the lot unless by implication. Such implication arises twice from the words of the fifth clause that if he die without issue before reaching twenty one, then all property, real and personal, “ which is hereby bequeathed to him ” shall go to the daughter Anne. Jarman lays it down that a devise in trust for A until he comes of age, and if he should die before, then over, is a devise in fee to A on coming twenty one (Vol. 1, ch. 27, p. 515); and also that if a testator refer to a disposition as made in his will, which in fact is not in terms made, the intention to make such disposition will, as a rule, be sufficiently indicated to be effectual (Id. p. 493). And the phrase in the fifth clause, “which is hereby bequeathed to him,” in respect of real and personal property, sufficiently indicates the testator’s intention to have been to devise the lot in fee to Thomas F. Bond if he should live to be twenty one. Let judgment be entered accordingly.