Masden's Estate

The opinion of the Court was delivered by Sergeant, J. — Jt has long been an established rule, that provisions disposing of the shares of devisees and legatees, dying before a given period, do not proprio vigore exend to shares accruing under that disposition. As where a man gives a sum to be divided amongst four persons, tenants in common, and declares that if one (or rather if any) of them die before twenty-one or marriage, it shall survive to the others. If one dies and three are living, the share of that one so dying, will survive to the other three: but if a second dies, nothing will survive to the remainder, but the second’s original share; for the accruing share is as a new legacy, and there is no further survivorship. Per Lord Hardwicke in Pain v. Benson, (3 Atk. 80.) See also Perkins v. Micklewaite, (2 Ch. Rep. 171; S. C. 1 P. W. 274.) Rudge v. Barker, (Cas. Temp. Talb. 124.) Barnes v. Ballard, before Lord King, cited 3 Atk. 78. So in Exparte West, (1 Bro. C. C. 575,) where a testator bequeathed to A. B. and C. the three sons of S. £1000 each, the interest to be added to the principal yearly, until they should respectively attain the age of twenty-one years: and in case any of them should die before that age, then to the survivors; A. died under twenty-one, and then B.; and the question which was raised upon petition was, whether that part of the share of B. which [442] accrued to him on the death of A. went over to C. on the death of B. Lord Thurlow thought it did not survive again, but, hesitating to decide it upon petition, a bill was filed, and the cause came to a hearing before Sir Lloyd Kenyon, M. R. who decided against the survivorship of the accruing share. 2 Pow. Dev. 724. According to these established principles, the direction to the executors in the proviso of Benj. Masden’s will, in case any or either of his children should die without having received his or her portion and without arriving at the age of twenty-five years, and not leaving issue living at the time of his or her decease, (which seems to be the true construction of the clause,) then to pay or assign the same, or the securities thereof, to the survivor or survivors of any children who might be then living, and the issue of such as might be dead, did not carry over to the last surviving child, Mary, or the executors in trust for her, the moiety which had accrued to Ann, by reason of the previous decease of Benjamin Masden, without issue; but that moiety of Benjamin’s share having become vested in Ann, as her absolute estate, by the death of Benjamin, passed on her decease, to her personal representative, and not in trust for Mary the survivor. Although this is the clear construction of the proviso in this will, yet if there be other clauses in the will and codicil controlling the proviso, and rendering another construction necessary, in order to reconcile the whole instrument and to effectuate the manifest intention of the testator, we should be bound to give effect to them, however strong the language might be in the proviso alone. But on examining the whole structure of this will, and comparing its different provisions, I am unable to find any such intention manifested. Mere conjecture is not sufficient: there must be a plain and apparent intention, capable of being collected from the will and codicil. The suggestion is, that there is an intention shown in the will and codicil, to keep the estate together as an aggregate fund, until the children respectively should arrive at the age of twenty-one and twenty-five years, and that if any died before the age of twenty-five, without leaving issue, their portion not paid over, was to be kept together by the executors in trust for the survivors or survivor; and in the event of the death of all of them, before that event, and the death or marriage of the widow, the whole was to go over to the residuary legatees. There can be no doubt, that if such a provision were apparent on the face of the will and codicil, the testator had full power to make it, and it would be binding on the Court to carry it into effect without regard to the consequences which would result to the widow or descendants of the testator. But I can perceive no such intention plainly expressed or capable of being drawn from the instruments. In the first place, this construction cannot be reconciled with the proviso in every event that might have happened. For by it, the [443] death of any one or more of his children before twenty-five, leaving children, is contemplated, and provision is made for these children, (and even for the issue of these children, which it is manifestly impossible there should be before that time,) and it directs the share of the child so dying, to be paid or assigned over to his or her children, &c. But if we suppose Ann to have lived to the age of eighteen, and then to have married and had children, and died at twenty-one leaving a child.or children, which might well have happened, then it seems to me, according to the argument, that all was meanjt to be kept as an aggregate fund, these children must be destitute of support from their grandfather’s estate, and must so continue till it should be ascertained whether the other child or children would survive to the age of twenty-five, which if Benjamin should live to that time, would be about fourteen years. The same thing might have occurred as to Mary, for the five hundred dollars per annum to the testator’s children was to stop on their death. These considerations render it probable that he intended his grandchildren should take their parents’ share,'as a vested estate, immediately on the death ,of such parent, which is in correspondence with the express and positive language of the proviso; and the direction over to the survivors, in case of the death of the children without issue, is in the same language, and to take effect at the same time as is directed .in relation to the issue of the children in case there were such issue; and I do not perceive how they can receive different constructions. The codicil, however, is mainly relied on. It provides, that in case all his children died, before arriving at twenty-five years of age, without leaving issue surviving, then, and in such case, from and immediately after the decease or intermarriage of his wife, he bequeaths over the sum of thirty thousand dollars, in trust for the overseers of the poor of the parish of Crowl, inLincolnshire, England, and all the rest, residue and remainder of his estate, whatsoever, in the event abovementioned, which may not have been previously disposed of, to Thomas Harrison, &c. Had he given over the said trust money, in case all his children died before twenty-five without issue then living, it might resemble the case cited of Worledge v. Churchill, (2 Bro. Ch. Cas. 465,) and there might perhaps be some reason for saying, as Mr. J. Buller did in that case, that it was the testator’s intention to keep the whole as an aggregate fund till that event occurred, and that in the meanwhile no accruing share should vest in any of the children or their issue. It may be observed however, that merely á gift over, in case all the legatees die without leaving issue, does not necessarily indicate that a limitation to survivors in case of the death of any without leaving issue, is intended to carry the accruing shares; Vanderguht v. Blake, (2 Ves. Jr. 534); though such a clause divests the accruing as well as the original shares of all, on the happening of the prescribed event. 2 Pow. Dev. 727. But here the testator only gives over thirty thousand dollars, and [444] then what may not have been previously disposed of, under the will, leaving the question open, how it was to be disposed of under the will, and giving over only what was left. So in Pain v. Benson, (3 Atk. 80,) the meaning of the testator was, that the bequest should' go among such persons as should be living at the decease of his father and mother; but here it is such as should be living at the death of a child without issue, and not, as has been argued, when the children should attain twenty-five or any other future point of time, for which it was to wait before it could vest. In Barker v. Lea, (1 Turn. & Russ. Chan. Rep. 413,) the bequest was, “ in case of the death of any or either of the children unmarried and without issue, then he gave and bequeathed the part or shares of him, her, or those so dying without issue, unto the survivors or survivor of them, equally share and share alike, and to be paid to them respectively at the same time along with their original shares,” and the original shares were bequeathed in the first part of the will, “ on their, his or her respectively attaining the age of twenty.-five years.” This was held by the Chancellor to be annexed to the substance of the bequest, and that they were contingent, and nothing vested in any till twenty-five, but in the mean time the whole to be kept as an aggregate fund. But in the case before us, the bequest to the survivors in the proviso, is not to wait until they attain twenty-five, but presently on the decease of any before attaining twenty-five, and becomes then vested. As to the argument, that if the accruing shares do not go over, there will not be sufficient left to answer the thirty thousand dollars bequeathed by the codicil, this is founded on conjectural estimates, which may or may not be correct. In some events there would be ample, even without the accumulating fund, which has been left subject to the directions of the will. Decree affirmed.