Nixon v. Robbins

GOLDTHWAITE, J. The will of the defendant’s testator contains the following clause : “I lend unto my daughter Mary Nison the following ne: gro slaves, viz., Peter, Esther, Michael;,. Atifistead-'and-Little Eanny (Little Fanny she is not to have: till the death of-my wife), and one negro girl named Rose; during-her natural life ; with this proviso : that if-her son, Thomas Nixon, how an infant, should live to be twenty-one- years*of-'age, Í give unto him, the said Thomas Nixon, three of the negroeswhich I have loaned my daughter Mary, viz., Rose, Arm* stead and Michael,- to him and his heirs forever ; and after the death of my daughter Mary, the negroes L- have loaned to her (for) her natural life, except the, threeT have-gjVen to toy grandson Thomas Nixon, I give and- bequeath (to) her-1 children lawfully begotten of her-body.”* The main question in the caséis,- whether-thed-eg-acy given to Thomas Nixon is vested or contingent. The gift is to-Thomas Nixon, l‘if” he should live to- be-twenty-one years of age; and the rule-is,- that this expression, unless-'if is- controlled by the’ context of the-will, postpones the* vesting of the legacy until the period at which it is payable; for until the event happens, that which- is grounded upon it cannot take place (Brownsword v. Edwards, 2 Ves.; Sr., 243, 24-8). But although this is the generad rule, applicable to all conditional words, it must yield to- the intention of* the*, testator*-; and hence, although the words- used: are suelo as, if unexplained, would prevent the legacy from vesting-immediately, yet, if from other, parts of the-will; it is apparent that such was not the intention of the testator-; but that-the-words ex-, pxessive of-a condition were, not used"in- that: sense, but only to mark the time when the legacy was to be received; then-the words must be construed to effectuate the intention.— Upon this principle-it is well settled, that, although.there be no gift of the legacy- previous to- the period appointed for-its payment, yet, if- the intermediate interest be given.- to the legatee, or to be used for. his-benefit, suplí circumstances will operate to vest the legacy-; for, the reason, that as the whole interest is given, either in one .way- or the other, for the benefit of the legatee, it could not-have been the intention of the-testator to have made the absolute interest in the legatee- con [670] tingent.—Fonerau v. Fonerau, 3 Atk. 645; Hoath v. Hoath, 2 Bro. C. C. 4; Parker v. Golding, 13 Sim. 418. So, also, when the intermediate interest is not bequeathed for the benefit of the legatee during minority, or until the fund is directed to be paid him, but such interest is bequeathed to another person beneficially till the legatee of the capital arrives at a particular age, and when he attains it the fund is directed to be paid to him; or, where the intermediate interest is given to another for life; as where the fund is be-' queathed to, or in trust to, A for life,- and after his death to B, In this class of cases, the person to whom the absolute property is limited, will take an immediate vested interest in the subject; such bequests being in the nature of remainders, and the interest of the first and subsequent takers vesting at the same time. This was the principle on which Boraston’s case, 3 Co. 16, was decided; in which the devise was to Thomas Amory and wife for eight years, then to the executors till Hugh Boraston should accomplish the age of twenty-one years, and the mesne profits to be employed by the executor to the performance of the will, and then to Hugh Boraston and his heirs forever. The conditional words, “ should accomplish ike age of twenty-one years,” were made to bend to the intent of the testator, gathered from the other parts of the will, which showed that the term of the executors was not to determine until the time when the remainder-man would have been of age, had he lived, and they were so construed ; and then, as the particular estate was not determined by the death of the remainder-man, the estate in remainder vested immediatety. This is the leading case ; and the principles on which it rests, have since been generally acknowledged. These principles are: 1. That where conditional words are used in a will, which, if unexplained, would prevent the vesting of a legacy, such words will'not be allowed to defeat the intention of the testator, that the legacy should vest immediately, when apparent from other portions of the will; 2. That where an absolute property is bequeathed to one, at a certain period in futuro, and the whole of the intermediate interest given to another, the legatee of the absolute property takes a vested interest.—Mansfield v. Duggard, 1 [671] Eq. Cas. Abr. 195, pl. 4; Goodtitle v. Whitby, 1 Burr. 228; Lane v. Gouge, 9 Ves. 226, 231; Taylor v. Biddall, 2 Mod. 289; Johnson v. Baker, 3 Mur. 318. It is obvious, that the case at bar does not fall within that class of cases, to which the last mentioned principle deducible from Boraston’s case is applicable ; the bequest of the intermediate interest not being to the daughter until Thomas Nixon shall arrive at twenty-one years of age. The gift is to her for life, provided Thomas Nixon does not live to be twenty-one; and if she dies before he arrives at that age, there is a gap between the intermediate interest and the legacy to Thomas Nixon ; and upon the principles applicable to real estate, the latter would be void as a remainder. This distinguishes the present case from the case of Johnson v. Baker, supra, and the other cases cited by the appellant.— Our conclusion is, that the legacy to Thomas Nixon did not vest, until he arrived at the age of twenty-one years. As the bequest to Thomas Nixon was contingent, it follows that the interest in the slaves during the interval between the determination of the life estate of Mary Nixon, and the happening of the contingency, upon which the legacy to Thomas Nixon was to vest, not being disposed of by the will, was an intestate interest, and was to be administered accordingly by the executor. The assent on his part to the legacy to Mary N^ixon had no effect whatever, upon the bequest to Thomas Nixon, for the reason we have already assigned. Had there been a limitation over to him, by way of vested remainder, then the assent to the legatee of the intermediate estate, would have operated as an assent to the remainder-man. But this is not that case. Judgment affirmed.