Heisse v. Markland

The opinion of the court was delivered by Gibson, C. J. — In Ellison v. Airey, 1 Ves. 111, it Was held, that where a legacy is to be distributed among a number, not named; but described in general terms, all Who answer the description at the appointed time of distribution, shall take in exclusion of those who may happen to answer it afterwards. Accordingly, it has since been determined in a train of cases,* not authority here, it is true, but nevertheless, founded in reason and necessity, that in case of a bequest to the children of a person named, as they respectively attain the age of twenty-one, none shall take who was not born at the period prescribed for distribution. And it is certain, that slight indications of an intent to the contrary, such as the words “ born, or to be born,” will be insufficient to found an exception. To prevent an indisputable violation of the intention on the one hand, these words must, on the other, be taken to have been used in reference to the period of distribution; by which means, each part of [276] the testator’s direction may be made consistent with the whole. If this were not the rule, restitution by those who had received their legacies, would be necessary, from time to time, as other children should happen to be born,or distribution would have to be deferred,in violation of the testator’s clear and positive direction, till all possibility of further procreation should be extinct; in either way,'a measure extremely inconvenient, if not impracticable. Doubtless, there may be cases where the persons to take, shall be determined subsequently to the time of distribution, as where it is evident, that the circumstance of the time, was a subordinate consideration; for it is certain, that a particular and minor intent, roust not be permitted to frustrate, general and ulterior objects of paramount consideration-. But where there are no ulterior objects, such as a bequest over, depending on the death of all the children, the time of distribution is, itself, a circumstance of paramount consideration: consequently, the plaintiff here, is entitled in- proportion to-the number born when she came of age. Judgment for the plaintiff!. Footnotes [*] See particularly Whitbread v. St. John, 10 Ves. 152, and Gilbert v. Borman, 11 Ves. 238.