Beatty's Administrator v. Montgomery's

The Chancellor. It is contended by the executrix and the administrator of the widow, that the legacies to the three nephews did not vest, but were contingent on their surviving the widow, and therefore, that by the death of all three in the life' of the [326] widow, before they were to be paid, they lapsed into the residue of the estate. The event upon which they were given, the death of the widow, was certain and not contingent; the time only was uncertain. It is different from a legacy given at twenty-one, or marriage, or when the legatee arrives at twenty-one, or marries; these events may never happen, and therefore the legacy is contingent. That the time is indefinite, as where the event is death or marriage, makes no difference; nor does the fact that the time of'arriving at twenty-one is certain. If the event is uncertain the legacy is contingent, though the time is fixed; and if certain, it is vested, although the time is uncertain. But on this point there is a diversity of opinion among the authorities, or rather in the dicta of the judges. One case, and only one, so far as I can discover, holding that a legacy given at a future time, fixed and certain, is contingent, and lapses by the death of the legatee before that time. This is the case of Smell v. Dee, 2 Salk. 415, decided by Lord Chancellor Cowper. And although the decision is not sustained by the authorities cited to support it, which are all cases where the event is uncertain, yet the case has been cited with approval by judges of high authority where the case under consideration did not involve the question, and their attention was not called to the distinction between a certain and contingent event. But for this case it is not necessary to reconcile these discordant views. Here the interest of the sum in question is given to one person for life, and at her death to these legatees. And in such case it is well settled by numerous decisions, from Stapleton v. Cheele, 2 Vern. 673, decided in 1711, to the present time, that the legacy vests on the. death of the testator. There is no diversity in the decisions on this point. In this state the law is settled by the case of Green's Adm'r v. Howell’s Ex’r, in the Supreme Court, and Court of Errors, 1 Vroom 326, and 2 Vroom 570. In that case the doctrine received the unanimous approval of the [327] Supreme Court and the Court' of Errors. And in the opinion in the latter court the Chief Justice says: “ In the application of the principle it is not material -whether the gift to the legatee for life is of the fund, or the interest or use of the fund.” In the case of Thomas Ex’rs v. Anderson’s Adm'r, ante p. 22, the same doctrine was held and applied. It must, therefore, be considered as the settled law of this court. None of the cases require that the fund should be separated from the rest of the estate and invested by itself. Ror do the provisions of the eighth clause of the will, that in case of the death of either of the legatees his share should go to the survivors or survivor, prevent the vesting. If a legacy is given simply to A without fixing any time for payment, with provision that if A shall die it shall go to B, this gives a vested legacy to A if he survives the testator ; the death is held to be death in the life of the testator. But if a legacy given to one at the death of a person named, is given to another in case such legatee should die, this is held to refer to death in the life of the person at whose death it is given. Such legacy is held to vest at the death of the testator, subject to be divested on the happening of the event, that is, dying in the life of the person named. Hervey v. McLaughlin, 1 Price 264; Clarke v. Gould, 7 Sim. 197; Whitton v. Field, 9 Beav. 368; Edwards v. Edwards, 15 Ibid. 357; Salisbury v. Petty, 3 Hare 86; Green v. Barrow, 10 Hare 459; Williamson v. Chamberlain, 2 Stockt. 375; 2 Williams on Executors 1134. These legacies were then vested in James, William, and Wesley, with a limitation over to the survivor, in case of the death of either in the life of the testator’s widow. Row as this limitation to the survivor is to the survivor at the death of the widow, the time when the legacies were given, and there was no survivor at that time, the limitation over never took effect, and the legacies being vested, they each went to the representatives of the proper legatee at the [328] -death of the widow. This was so ruled in Harrison v. Foreman, 5 Ves. 207; and in Gray v. Garman, 2 Hare 268. And in Salisbury v. Petty, 3 Hare 85, it is held that where legacies were given to two at the death of the legatee for life, with a provision that if either should die leaving issue, his share to such issue, that the legacies vested at the death of the testator, and the share of one who died in the lifetime without issue, did not lapse or divert by his ■death, as the. event on which it was limited over had not ■occurred, but that it went to the representative of the legatee. These decisions seem to me to be supported by principle. .Accepting them as the rule, I must hold that these legacies vested in the several legatees at -the death of the testator, -and that as neither survived the widow, there was no one who could take by the limitation over, and therefore, that-■¡the administrator of each is entitled to the legacy to his Intestate, with interest from the death of the widow.