Appeal of Reed

Opinion, Mu. Justice Paxson: Thomas Morrow, the testator, died September 11,1874. He left one daughter and nine grandchildren, children of a deceased daughter. By his will he gave his executors charge of his real estate, and directed that after they should realize from the rents, etc., sufficient to pay his debts, funeral expenses, and a legacy of $1,000 to a grandchild, and $500 to a great-grandchild, they should sell a certain described portion of his farm. The executors were to be the sole judges of the time when it should be sold as well as of the terms of sale. The will then provides: “ That when all that part of my farm has been disposed of, having nine (9) grandchildren, viz.: Thomas M., John K., Harry and Charles Blair, Fanny Eichbaum, Mary Reed, Jane Meanal, Eliza Rind, and Eleanor Blair, all children of my deceased daughter Nancy, who was intermarried with John Blair, deceased; I will and direct that the net proceeds arising from the sale shall be divided into nine (9) equal parts, and that my said executors or the survivors of them shall for the period of twelve years from the time of my decease, [220] keep said net proceeds invested at interest and pay over annually to each of my above named grandchildren one ninth of the interest thereof annually, or if any of them have died leaving heirs then pay the same to said heirs, and at the full expiration of twelve years from the time of my decease shall in like manner pay over the principal. But neither interest or principal shall be hable to attachment.” The question for consideration is whether the legacies given to the grandchildren are vested or contingent. If vested, the executor or administrator of a deceased grandchild would take; if contingent, the heirs of such deceased grandchild would be entitled to the fund. The court below held that the legacies were contingent and distributed the fund to the heirs. It will be observed that the testator after reciting the fact that he had nine grandchildren directs that the net proceeds arising from the sale of the farm shall be divided into nine equal parts, being one for each grandchild; that said proceeds shall be kept invested for twelve years after his death; that his executors shall pay over annually to each grandchild the one ninth part thereof, or if any of them “ have died leaving heirs, then pay the same to said heirs,” and after the expiration of twelve years to pay over to each the one ninth of the principal, etc. In other words, each grandchild was to have the interest on one ninth for twelve years and then receive the principal.' The general rule undoubtedly is that when a legacy is given to a person to be paid at a future time it vests immediately. But where it is not given until a certain future time it 'does not vest until that time, and if the legatee dies before, it is lost: Patterson v. Hawthorn, 12 S. & R. 112. It was said in Letch-worth’s App., 30 Pa. 175, that the law always inclines to treat the whole interest in property as vested rather than contingent, and therefore in case of doubt it declares the interest vested. And in McClure’s App., 72 Pa. 414, it was said by the late Justice Williams : “ The point which determines the vesting is not whether time is annexed to the gift, but whether it is annexed to the substance of the gift, as a condition precedent. Where there is an antecedent'absolute gift independent of the direction and time of payment, the legacy is vested; but where there is no substantive gift and it is only implied from the direction to pay, the legacy is contingent, unless from partic [221] ular circumstances or the whole face of the will a contrary intention is to be collected.” In general where a legacy is given for an object which fails the legacy will be lapsed; as where a sum of money is given to an infant for the purpose of binding him apprentice, and he dies before the proper age. So where a legacy is given to a female expressly for a marriage portion and she dies before marriage, there is great reason for supposing it was not intended to give it to her representatives. Here we have legacies given by a testator to his grandchildren, and in case of their death to their heirs. It is true it is not a direct gift in terms, but it is a substantive gift, notwithstanding. They are to have the interest for twelve years and then the principal is to be paid over. The time for. the payment of the principal is postponed, but it is sure to come. And it is to be noted that there is not in this will the faintest trace of an intent in case of the death of any of the grandchildren before the expiration of the twelve years, to give the shares of those so dying to the survivors. The share of a grandchild that shall “have died” is to go to his “heirs.” It is contended that the words “have died” refer to the period of distribution. They are, however, appropriate words to designate a death between the making of the will and the death of the testator. A will speaks as of the death of the testator. But we regard this point as unimportant. What did the testator mean by the word “ heirs,” as used in this connection ? I understand it to mean that in case of the death of one of the nine enumerated grandchildren, the share of such grandchild — that is, one of the nine equal parts set apart for his or her use — shall be paid • to such person or persons as would be entitled to it as his or her legal representatives by the law of the land; that is to say, it was not, in the case of the death of one, to go to the survivors, but to be considered as vested in the deceased child. This was the construction placed upon the same words by this court in Patterson v. Hawthorn, supra, where a testator directed the proceeds of his estate to be divided between his six sons and their heirs upon the death of his wife. The same principle is recognized in the later cases of King v. King, 1 W. & S. 205, and McGill’s App., 61 Pa. 46. In Mull v. Mull, 81 Pa. 393, where the testator directed a sum of money to be “ equally divided [222] among all my children or their legal heirs,” this court held that the words. “ or their legal heirs ” were used not to individuate grandchildren, but to supply a legal succession in the event of the death of any one, and meant simply legal representatives. The gift of a legacy under the form of a direction to pay at a future time, or upon a future event, is not less favorable to vesting than a simple and direct bequest of a legacy at a like future time or upon a like event. The question is one of substance and not of form, and in all cases it is whether the testator intended it as a condition precedent that the legatees should survive the time appointed by him for the payment of their legacies; and the answer to this question must be sought for out of the whole will, and not in the particular expressions in which the gift is made: Leeming v. Sherratt, 2 Hare 14. It was urged, however, that the words in the Avill — “ but neither principal nor interest shall be liable to attachment ”— coupled with the trust, indicate that the postponement of the gift was on account of the character of the donees, and an indication of an intent that the legacies should not vest until the expiration of the twelve years. There is some force in this, but we do not think it sufficient to prevent the vesting of the legacies. It is at least doubtful, from a reading of the entire will, whether the testator had not in his mind the convenience of his estate rather than the character of the donees when he directed the postponement of the payment of the principal. And while it is true as a general rule, as before observed, that where the time or other condition is annexed to the substance of the gift and not merely to the payment, the legacy is contingent, yet it is equally true that a well-recognized exception to the rule is, that when interest, whether by way of maintenance or otherwise, is given to the legatee in the meantime, the legacy shall, notwithstanding the gift appears to be postponed, vest immediately on the death of the testator. This circumstance indicates an intention that the beneficial enjoyment shall begin at once, and payment only of the principal or capital be postponed. When a legacy is given by a direction to pay when the legatee attains a certain age, the direction to pay may import either a gift at the specified age or a present gift with a postponed payment; and if the interest is ,given in the meantime, it shows that a present gift [223] was intended: Provenchere’s App., 67 Pa. 463; In re Hart’s Trusts, 3 DeG. & Jones, 195. While this is a close case, and not by any means free from doubt, we are of opinion that the testator intended to giye each of his grandchildren a vested interest in the one ninth share referred to, and that distribution must be made to the personal representatives of such as are deceased. And were it even more doubtful than it is, we would be constrained, by the rule above referred to, to resolve the doubt in favor of vesting. The decree is reversed at the costs of. the appellees, and distribution ordered in accordance with this opinion.