Opinion
Decided December, 1876.
A devise of the residue to J., his heirs and assigns, with the proviso, that if he died during his minority, leaving no child alive at his decease, the said residue is given to others, vests a defeasible fee in J. at the testator's death; and, during the minority of J., the income is his.
BILL IN EQUITY, to establish the construction of a will. The residue of the testator's estate is given to Joseph, the defendant's ward, his heirs and assigns. But if Joseph "shall die under age and unmarried, or under age and married and leaving no child living at his decease," "the said residue" is given to other persons. The plaintiffs, administrators with the will annexed, seek a decision of the question whether the income of the residue, during the minority of Joseph, belongs to him.
Woodman, for the plaintiffs.
Hobbs, for the defendant.
No time being expressly fixed by the will when Joseph is to receive the residue, it vested in him at the testator's death. The will gave him an estate in possession, defeasible by his death, during minority, without issue living at his decease. As the residue vested in him at the testator's death, the income derived from it, before defeasance, is his.
Case discharged.