Sutton v. . West

EodmaN, J. It is conceded that the words “if,” and “when,” are ordinarily words of condition, or of conditional limitation. Guyther v. Taylor, 3 Ire. Eq. 323; Giles v. Franks, 2 Dev. Eq. 521. It is equally clear that their meaning may be controlled by provisions in the will which show an intent that the legacy shall be vested. If the third clause in the present will stood alone, we probably should consider the legacy of $500 to Elizabeth West, as contingent on her being alive when the youngest child of the testator became twelve years of age. The language of the fourth clause as well as that of the fifth, shows that the testator knew very well how to make a legacy clearly and unmistakably contingent. In our opinion the legacy in question was vcsied, and the testator intended only to postpone the time of payment. Our opinion is founded on the following reasons: 1. By the fifth clause, the testator lends to his wife, and seven youngest children, (naming them, and among them Elizabeth) all his real and personal estate for their support out of the profits, until his youngest child shall arrive at the age of twelve years. And the will proceeds ; “It is then my will and desire, that all of the estate above named shall be sold, and the proceeds thereof divided equally between my wife, if she should then be living, and all of my children, or their legal representatives, to-witnaming them, and among them the said Elizabeth. This legacy of the residue is certainly vested. If we were to hold the legacy of $500 to Elizabeth in the third clause to have lapsed upon her death before the arrival of the youngest child to the age of twelve years, it would fall into *432 tbe residue, and her representative would take a part of it under this fifth, clause. We can conceive of no reason why a testator should make dispositions of his property inconsistent with each other in part at least. 2. The payment of the $500 is to take place when the youngest child becomes twelve years of age.. At that time the whole estate of the testator is to be sold. The pecuniary legacies are then to be paid, and the residue is then to be .divided among certain children named. It is settled, that if in the third clause the - testator in giving the legacy of $500 had used the words “to be paid” when the youngest child attains twelve years, the legacy to Elizabeth would have been vested. The language of the fifth clause is to that effect, and it is immaterial where it is inserted. Perry v. Rhodes, 2 Mur. 140. Per Curiam. Judgment affirmed.