Bushnell v. . Carpenter

*273 Danforth, J. It is well settled that a mere postponement of the time of payment will not make a legacy contingent, and here is nothing more. “ I give,” says the testator, “ I give and bequeath to the two children now living of my daughter Ann Maria, the sum of $1,000 each, to be paid to them respectively as they arrive at the age of twenty-five years.” And since we know that Ellen, whom the plaintiff represents, is one of those two children, we may read the will as if the testator said, “I give and bequeath to Ellen the sum of $1,000.” Upon these words appellant makes no argument. They clearly signify a direct and positive gift (1 Roper on Legacies, 479; Lister v. Bradley, 1 Hare 10), and can be considered otherwise only by importing into the clause the word “ if,” or some other word of similar meaning, signifying a condition precedent. The learned counsel for the appellant relies on the rest of the sentence and says there is a contingency. But the testator does not say, “ I give,” “ provided,” or “ if ” Ellen arrives at the age of twenty-five years, but only indicates the period which must elapse before payment can be demanded. (Manice v. Manice, 43 N. Y. 303; Livingston v. Greene, 52 id. 118; Smith v. Edwards, 88 id. 92.) And when we see that the defendant takes the land of the testator, especially charged with and subject to the payment of this legacy, it is difficult to find any ground for the contention that the death of the legatee relieves him from the obligation. So far as the learned counsel for the appellant treats the intent of the testator as a question of fact depending on outside circumstances, it is needless to follow him, for the trial court and General Term are both the other way, and we agree that the force of the argument is not all on his side. Upon the will itself, having regard to its various provisions, we have no doubt that day of payment was postponed for the convenience of the estate. The defendant is charged with the payment of all the debts of the testator, and his legacies; in regard to the latter, time is given, so that they are to be paid at intervals, annually, for the first five years, to his several children, to the grandchildren *274 as they arrive at the age of twenty-five years, in each instance without interest, and as may be inferred chiefly from the land itself and its profitable tillage. ISTor do the cases cited for the appellant, tend to his support. In Loder v. Hatfield (71 N. Y. 98) the legacies there in question were held to have vested upon reasons not inapplicable here. In Patterson v. Ellis (11 Wend. 260) a distinction is taken between a legacy “given to A., to be paid when he shall attain the age of twenty-one years,” and one given when the legatee shall attain, or provided he does attain, the age of twenty-one, and it is said the first vests, and payment only is postponed ; the other does not, because time is the substance of the gift. But even in the latter case, if interest is in the mean time to be paid, the principal vests. And so in the other cases. (Everitt v. Everitt, 29 N. Y. 39, and Warner v. Durant, 76 id. 133). This circumstance may disclose the intent of the testator, as in these instances, but that intent may appear without, as in the case now in hand, where the legacy is a distinct gift, as appears both by a strict construction of the words, and by the general intent manifest in the will. We think the case was well disposed of in^the court below. The judgment appealed from should, therefore, be affirmed. All concur. Judgment affirmed.