The three questions which are reserved for the advice of this court may conveniently be considered as one: Did the property bequeathed to Mrs. Marshall, then Jessie B. Seeley, vest in her when she became twenty-five years of age? If it did, then the whole case becomes very simple: it was her estate and must be settled according to law. And upon the facts set forth in the record we are very clearly of the opinion that it did. The beneficial interest vested in her at the death of the testator, and the entire estate, free from the trust, when she became twenty-five years old. The case of Newbury v. Hinman, 49 Conn. 130, is in point, and is decisive of this case. There a testator said: "I give and devise to C in trust for my son L one thousand dollars, the interest to be used for his benefit until of lawful age, then the principal to be his or his heirs and assigns forever." L survived the testator but died before arriving at lawful age. This court held that the property vested inL at the death of the testator, and that his administrator was entitled to demand and receive it of the trustee. The cases cited in the opinion in that case abundantly sustain the decision. See also Dale v. White, 33 Conn. 294.
But the language of the will really leaves no room for construction. By its terms a certain portion of the testator's estate is given in trust for the benefit of his granddaughter — Jessie B. Seeley — the income to be applied for her "use and benefit . . . until she shall reach twenty-five years of age, *Page 94 and then to pay and transfer to her the principal, together with all the accrued income." When Jessie B. Seeley reached the age of twenty-five years the trust ceased as to her, unless that condition of things in respect to her was found to exist upon which the will provides that the trust should continue: that, "in the judgment of the said trustees or their successors, she should be incapable of managing her affairs." This provision of the will required, in order to continue the trust, an affirmative act of judgment by the trustees, at the time she became twenty-five years old, to the effect that she was incapable of managing her affairs. Seeley v. Hincks, 65 Conn. 1. In the absence of such an affirmative act of judgment the trust ceased. The facts in the record show not only that there never was any such act of judgment by the trustees, but that on the contrary they by their acts adjudged that she was entirely capable of managing her affairs. In this condition the command of the will to the trustees was to pay over to Jessie B. Seeley the principal of the fund which they held for her, together with all the accrued interest.
It appears that as to a considerable portion of the property in their hands and belonging to said Jessie B. Seeley, the trustees had not done any formal act of passing the title to her. Counsel for the trustees suggest that "she died before receiving the same," and that therefore the trust continues until her child reaches twenty-five years of age. This suggestion is without force. The words cited from the will evidently refer to the death of Jessie before she should reach the age when the trust was to cease. Besides, in the common understanding, as well as in the contemplation of the law, Mrs. Marshall, being the devisee of an estate in fee simple absolute, "received" that estate at the moment when she became entitled to receive it. Johnes v. Bears, 57 Conn. 295;Harrison v. Moore, 64 id. 344, 348; Morris v. Bolles, 65 id. 45; Chase v. Benedict, 72 id. 322.
The Superior Court is advised that the portion of Mr. Barnum's estate named in the clause of his will mentioned in the complaint, vested in Jessie B. Seeley in her lifetime and