Norris v. Beyea

Barculo, J. The testator by his will gives and bequeaths to each of his four daughters the sum of one thousand dollars to be paid out of his personal estate within six months after his death. In a subsequent clause it was provided that in case either of the daughters should die before having attained the age of twenty-one years, and without lawful heirs, her estate was given to the surviving sisters, share and share alike. Catharine, one of the daughters, died in the lifetime of the testator, and the bequest to her did not lapse but passed, to the three survivors, as was correctly decided at the special term. Isabella, another of the daughters, became the wife of Isaac Beyea, and died three years after the testator, but before attaining the age of twenty-one years, and without lawful issue. The first question which I propose to examine, and upon which I differ with the learned justice who decided this cause at the special term, is whether the legacy so given to Isabella passed, on her death to her surviving sisters, or to her administrator. The bequeathing clause gives the legacy to Isabella absolutely, and six months after the testator’s death it was payable; and there is no doubt that she could have enforced the payment at any time thereafter, during her lifetime. There is nothing in the will to postpone the time of payment beyond the six months. The legacy, therefore, became vested at the testator’s death. For it is an absolute gift, with a fixed time of payment. The testator having given the absolute property to Isabella and the legacy having vested at his death, he had not the power to divest it or limit it over after her death. For it is a well settled rule in regard to personal property, that all limitations over are void after an absolute gift of the property to the first taker. If a testator designs to control the personal estate beyond the lifetime of the legatee, he must give the first taker, in express terms, only a life interest, and prevent the legatee from obtaining the absolute possession and disposition of the [426] fund. This rule, I apprehend, results from the nature of the property. At all events it is established by authority beyond all dispute. The case of Patterson v. Ellis, (11 Wend. 259) settles this principle. In that case the testator directed the sum of $20,000 to be placed at interest, and the proceeds to be applied in part to the education and maintenance of his daughter, and in case of her marriage the whole income was to be paid to her, and that after she attained the age of twenty-one years the whole sum should be at her free and absolute disposal; but if she died without leaving” lawful issue, before she arrived at that age, he directed the whole sum to be distributed with the residum of his estate. The daughter having died without issue, before arriving at full age, it was held that the legacy vested in her, and that the limitation over was void as repugnant to the former provisions of the will; by which decision the legacy was recovered by the administrator as a part of her estate. Judge Savage delivered a masterly opinion, reviewing all the cases on the subject. The great point in controversy in that case was as to the vesting of the legacy, as the property was not given absolutely. The distinction was adverted to between legacies given absolutely, with the time of payment postponed, and legacies given at a certain future time. But in the case before us we are not embarrassed with any of these questions. Here the gift was simple and absolute. Even the time of payment was fixed at a period which occurred before the death of Isabella. And if by any possible construction we could make the time of payment be extended to her arrival of age, it would still fall within the principle of Patterson v. Ellis, and be a vested legacy with the time of payment postponed. It was not given to her if or when she arrived at full age, but was given to her immediately, and payable at a future time, and became vested at the death of the testator, as much as a right of property can be vested in any chose which secures money payable at a future day. The administrator is therefore entitled to the $1000 given to Isabella and one-third of the legacy bequeathed to Catharine. [427] He is also entitled to the one-sixth, of the moneys coming from &He estate of the father of the testator on the written instrument mentioned in the will. [Dutchess General Term, October 4, 1852. Morse, Barculo and Brown,, Justices.] As Cyrenius Crosby, one of the sons of the testator, died a few days after his father, the legacies given to him had vested, and do not therefore, any part of them, pass to the representatives of Isabella, under the will. The rights of the parties in this respect depend upon the statute of distributions. The decree must therefore be modified according to the foregoing principles, and the costs paid out of the estate of Cyrenius Crosby, the testator. Morse, J. concurred. Brown, J. dissented. Decree modified.