Everett v. Mount

By the Court. McDonald, J. delivering the opinion. Whether the legacy vested in all the children at the death of the testator, depends upon the object and intention of the testator. As remarked by a learned lord Chancellor of England ; “ upon such a question no one can be quite sure, that any decision is right.” We must determine by the best guides we have. In the beginning of the will, the testator declares it to be right and proper, both as it respects himself and family, that he should make a division of his property. He makes a special bequest to his wife. He directs the balance of his property to be kept together until his youngest child becomes of age. He explains his object. It is not for the purpose of accumulation; but it is for the benefit of those of his children who have not attained majority. That is his exclusive reason for directing the property to remain together. Each of his children was to be clothed and educated to equalize them with his elder children, who had been clothed and educated. As they became of age, they were to have a thousand dollars. The only object of the testator in making a will seems to have been to provide for his wife a comfortable home during her life, and to give the same advantages to his younger children, that his older children had enjoyed. In all other respects, the will makes just such a distribution of [328] bis property as the law would have made. There is nothing in the whole plan of the will which manifests an intention that the property should not vest. It would seem to be inconsistent with principle to hold that the property did not vest in those for whose exclusive use it was to be kept together, and for which reason alone the division was postponed until the youngest child became of age. He directed his estate to pay them one thousand dollars as they became of age. When his youngest child became of age, he wished an equal division to be made of his property. There is no condition annexed to the bequest. No word is used indicative of an intention, on the part of the testator, that the property should not vest at his death in all his legatees. In the Circuit Court of the United States, for the third Circuit, a somewhat similar case was decided. Reading vs. Blackwell, Baldwin’s Reports 166. The testator directed his real estate in New York, to be sold when J. H. W. should attain, or in case of his death, might have attained, the age of twenty-one years. He directed one half of the proceeds oí the sale to be carried to the^residuary part of his estate. This residue he gave to certain legatees, three of whom died before J. H. W. attained the age of twenty-one years; before, therefore, the land in the city of New-York could be sold, and of course, before one half of the proceeds could be carried to the residue of the estate. It was held that the legacies vested at the testator’s death, and that the personal representatives of the deceased legatees were entitled to them. It is insisted in this case, that there was no gift of the legacy prior to the period appointed for its payment, and that complainant’s wife having died before that time, the legacy did not vest in her. The intermediate interest of the entire residue of the estate is directed to be applied to the clothing and education of those of the testator’s children, who had not' attained the age of twenty-one years, and among them was included the complainant’s deceased wife. This circum [329] state had the effect, prima facie, of vesting the legacy. 1. Roper on Leg. 387 — 8. Other circumstances prove that the testator intended the legacy to vest on his death. His only objection, as is manifestly collectible from his will, to the immediate distribution of his estate, was that the younger children might be clothed and educated before the division. It was a gift to them for that purpose up to the time mentioned in the will. But if the youngest child had died, under age, and the others were at that time of full age, the estate would have been immediately distributable, because the reason which operated on the testator would no longer have existed. This is a contest amongst the children of the testator, all of whom are legatees under the will. There is no expression in the will, which shows an intention on the part of the testator to give a preference to one of his children over another; on the contrary, his main object seems to have been to equalize their interest in his estate under his will. His elder children had been clothed and educated by him until they arrived at age. This is to be presumed. If an immediate distribution had been ordered, they would have had, to that extent, a greater interest in the estate than the younger children. The testator had given off to such of his children as had arrived at age, property or money, but not an equal amount to each. He provides for a division, on terms of perfect equality, at the final distribution of his estate. He had given one of his sons something more than one thousand dollars. The excess he directed to be charged against him at the final distribution. He had given his son-in-law, less than a thousand dollars. He bequeaths to him a sum of money to make up that amount. He had given another son an inconsiderable sum. He bequeaths to him a few negroes, and fixes a value on them, and directs that at the general division he should account for all over one thousand dollars. He directs [330] that each of his younger children as they respectively become of age, shall be paid one thousand dollars. When his youngestchild comes of age, he wishes an equal division made of the balance of his property. But amongst whom is this division to be made ? The testator does not say. If there was no bequest until the period fixed for the division, there, is certainly no express bequest to any one at that time. We think it evident from the whole plan of the will, that the testator intended that his estate, except what he had bequeathed specifically to his wife, should vest in his children, and perhaps his wife, at the time of his death, and that he only fixed the period at which the distribution should be made. Judgment affirmed.