In re Estate of Clancy

The following is a copy of the will of the testator:

*347 The will devised and bequeathed to the five children of the testator certain property, “subject to the conditions hereinafter mentioned”:

It is to be noted that the will was drawn by a lawyer, and that no express provision is made that the share of Bridget Feeney, in case of her death before distribution, shall go to her heirs.

The omission of the testator to make such provision is a very significant fact, because if he had desired that the heirs of Bridget should take their mother’s share he would have said so in the will. He may have desired to provide for his sister, as she was a widow; but it is scarcely probable he would take away property from his own daughter to give to his nieces and nephews. Such an intent should clearly appear on the face of the will.

Bridget Feeney died in October, 1889, and Thomas died in May, 1890—both events having taken place before the distribution could be had under the will.

The question for solution is whether Bridget Feeney’s heirs take the share that would have gone to Thomas, had he lived; or whether Thomas’ heirs take it; or whether, as to that interest, intestacy occurs.

The…