Roberts's Appeal

The opinion'of the court was delivered, July 2d 1868, by Thompson, C. J. The testator, George Geiger, deceased, left a will, containing numerous bequests and devises, and among them one to a grand-nephew, in the following words, viz.: “ I direct my executors to vest in stock, or in the purchase of good real estate in the county, the sum of $1000; the dividends, rents, or profits of which, to be applied to the support and education of my nephew George Geiger, son of Hiram Geiger, deceased, until he attains the age of twenty-one years; and in case he lives tq attain that age, I give the stock and money, or land, to him and his heirs.” Geiger died before attaining his majority, unmarried, and the question in the court below was, whether the corpus of the bequest was vested in the legatee, or was contingent, depending on his attaining the age of twenty-one years. In other words, whether it passed under the intestate laws to his legal representatives, or to the residuary legatees in the will. The court below held that it was vested and descended to his heir at law under the intestate acts. Were it not for certain rules of construction, in themselves somewhat artificial, but more than once applied to cases of bequests of the above description, I should feel much inclined, as was the learned judge below, to hold the bequest of the corpus of the legacy in this case to have been contingent, and not vested at the death of the legatee. The words are, “ in case he lives to attain that age” (twenty-one years), “ I give the stock, money, or land, to him and his heirs.” The words “in case” imply a condition as explicitly as “if,” “upon,” and the like, and express a contingency, which contingency was in this case dependent on attaining the designated age. If the words just quoted stood alone no doubt that the legacy would have been contingent, but they are preceded by what it is thought, on authority, controls and leads to a different result in this case. In the first place, the testator severs from the body of his estate $1000, to be invested, to make a provision for the support and education of his nephew. This is an indication of an intent to make him the beneficiary of the corpus of the legacy, especially as here, where he provides no limitation over to any [73] person or persons in the event of the decease of his nephew before attaining age. The setting apart of the sum mentioned — making no disposition over in the event of death before twenty-one, and the purpose being one of support and education, are strong circumstances of an intention to give the income until twenty-one and then the possession of the principal. The law indeed attributes this intention in the absence of anything to control this form of bequest. Adamson v. Armitage, 19 Ves. 416, cited and recognised in Hellman v. Hellman, 4 Rawle 440; in Schriver v. Cobeau, 4 Watts 130, and in Garret v. Rex, 6 Id. 14, clearly establish the rule, that primá, facie the gift of the product of a fund is a gift of that product in perpetuity, and consequently a gift of the fund itself. As an indication of intention, it seems to me, it is not weakened by fixing a period at which the gift of the principal is to take effect. In Schriver v. Cobeau, the bequest was, “ I give unto my nephew Alexander Oobeau, the interest arising from one share of 5 per cent, state stock, the nominal share being $1000; and when the principal is paid off by law, then I give to him the principal arising from such share.” This court held that the legacy, both as to the corpus and product, was vested upon the principle announced in Adamson v. Armitage, 19 Ves. 416; citing Fonnereau v. Fonnereau, 3 Atk. 645, 1 Ves. 118, and Fearne on Cont. Rem. & Ex. Dev. 465. This was a case much like the present, and not distinguishable in principle, although there are other considerations noticed in this case which make it the stronger, in reference to the principle, of the two. Speaking of the form of the bequest in that case, Sergeant, J., said, “ the testator meant that the legatee should enjoy the corpus of the bequest in the way it was most susceptible of profitable enjoyment — the interest while interest — the principal when principal.” This remark is applicable as fully to the case in hand as it was to that. Another consideration mentioned in that case is equally applicable here. “ A different construction,” continues the learned judge, “ would deprive the children of the legatee, if he have any, of the property, in the event of the parents dying before the expiration of the loan.” This is an intention hardly to be attributed to the donor of such a bequest as that under consideration, and it is intention we are exploring. If that is not to be attributed,' its opposite follows as a necessary result. I do not mean, however, to say, that this consideration alone would lead to the conclusion of a vested interest, but with the other considerations alluded to, I think we cannot fail to regard the decision below, as to the legacy being vested in the legatee, as the true exposition of the law of the case. I ought perhaps to have noticed, that the testator, in one or more of the bequests in his will, contingent on arriving at age, has limited them to other persons by proper provisions, in case of the decease of the first legatee; showing that when he [74] intended this, he had it properly provided for in his will. He omitted that as already noticed in this bequest. The distinctive difference between devises of realty and personalty aids in construing clauses in wills like the one under consideration. In the former, words of limitation must be added to give more than a life estate; but in the latter, words of qualification are required to restrain the extent and duration of interest : 2 Rop. on Leg.; 4 Rawle 440; 6 Watts 14, and 4 Id. 130, cited supra. No words are used to qualify the bequest in this case; and therefore there is full play for the principles which which gives to it the quality of a vested interest upon the princi-. pies referred to. The decree of the Orphans’ Court is affirmed at the costs of the appellants.