McGill's Appeal

The opinion of the court was delivered, March 11th 1869, by Thompson, C. J. The point of this case, it seems to us, is to ascertain whether, by our decisions, the bequest over to George McCulloch and Thomas H. Baird, of the bank-stock bequeathed [50] by the testator to Margaret McCormack for life, passed and was vested in them in unlimited ownership, absolutely and unqualifiedly, so as to permit an assignment of it in anticipation of this period of enjoyment. The bequest was to Margaret McCormack of the proceeds of 83 shares of stock of the Mechanics’ Bank for life, and after her decease to be sold, and the proceeds equally divided between the above-named Thomas H. Baird and George McCulloch, “ or their heirs,” &c., unless they should prefer to take it as it was, or may have been invested by the executors under a power in the will. It has been ably argued by the exceptants’ counsel, that the words show that the bequest to Baird and McCulloch “ or their heirs” are substitutionary, or perhaps more correctly, alternative bequests. That is to say, if either of them died before the life interest in Margaret McCormack was exhausted, in that event it was to go, by virtue of the bequests, directly to the heirs of the deceased party, as from the testator. On the other side, it has been as zealously contended that these words, “or their heirs,” import a limitation to whoever might legally represent such deceased legatee, and if undisposed of in any way by him, it would pass in administration as his property at the time at which it would have passed into his actual possession had he lived, and that it was vested so as to enable the remainder-men to assign it, as both did, before the decease of the first taker. The authorities cited for this as the rule in this state, are Patterson v. Hawthorne, 12 S. & R. 112; King v. King, 1 W. & S. 205; Reed v. Buckley, 5 Id. 517; Buckley v. Reed, 3 Harris 83, and Manderson v. Lukens, 11 Id. 31. The words in these cases specially adjudicated upon are identical with those which give rise to the doubt in the case in hand. Tilghman, C. J., in the first of these cases, asks, “ what did the testator mean by the words ‘ or their heirs V I understand it as if he had said, to be paid to such person as would be entitled to it as their representatives by the law of the country, that is to say, it was not, in case of the death of one, to go to the survivors, but to be considered as if vested in the deceased child.” It is not correct to say that this was an obiter dictum on the part of the Chief Justice. It was the very point in contest, and not whether the husband could have taken under the alternative bequest. That may have been a point not so clear, under the provisions in the will in that case. In King v. King, supra, where the same collocation of words is to be found in the will as in the last, and I may say in the present case, Gibson, C. J., declared that their effect was a vesting of the legacy according to Patterson v. Hawthorne, a case he thought not [51] distinguishable from that under consideration. Some question was made in that case, whether the legacy was vested or contingent, and was disposed of in the opinion of the Chief Justice on abundance of authority cited by him, mostly English, that “ where the enjoyment of an entire fund is given in fractional parts, at successive periods, which must eventually arrive, the distinction between time annexed to payment and time annexed to the gift becomes unimportant. In such cases it is well settled that all the interests vest together. Thus, a legacy to one for life, and to another at his death, goes to the legal representatives of the latter, should he not live to take it.” It was essential to the soundness of the decision in that and the preceding case, and all others which have or shall follow, that the legacy in the second taker should be vested, and the rule is undoubted that it is; were it not, it could not go to assignees or the personal representatives of what might be called the remainder, as we have seen it does. These cases were followed at intervals by the others which I have referred to, and the same interpretation has been applied to the same words in all of them. We need not enlarge in defence of the positions assumed by the auditor and the court below, in the presence of these authorities ; they are binding on us, and are too numerous to be disregarded, even if there might be doubts of their original soundness, which I do not, by any means, entertain. I may remark, however, that it is very likely the words “ or their heirs” added to the bequests to Thomas H. Baird and George McCulloch, were to prevent any claim of survivorship, if one of them should happen to die before the time should arrive for the payment of the legacy. That was thought to be the reason for the use of the words in Patterson v. Hawthorne, but this did ngt in any of the cases have the effect of preventing the vesting of the legacy on the principles already stated. In this view of the ease, McCulloch had the power to transfer his interest in the bequest to him of an equal share of the bank-stock or its proceeds before the death of the first taker, as he did, and so also as did Baird. Had he not done so, it would have passed to his administrators, and through them to his heirs, on the principle of the cases cited. It seems true, as contended by the learned counsel for the exceptants, that a different rule prevails in England as to the effect of such words as we have here, in a will; but as we have authorities directly in point in our own court, I have not thought it necessary to investigate the process by which they arrive at the conclusion that alternative bequests take effect after vesting in the legatee over. For the rule of vesting, if I understand' it, holds them to exist on the principle we have stated in this case, and which operates here. We will not trouble ourselves, how [52] ever, about this. We must affirm the decree made in the court below. The decree of the Orphans’ Court is affirmed, and the appeal is dismissed at the costs of the appellants.