Ward v. Tomkins

The Chancellor. Elias Tomkins, late of the city of Newark, deceased, by Ms will gave part of Ms residuary estate to the children of his son Daniel, with direction to Ms executors to invest it for the benefit of those children, and to divide it equally between them as they should respectively come to the age of twenty-one years. At the time when the will was made, [4] and at the time of the testator’s death, Daniel had but two children. After the testator’s death, and before the elder of those children became of age, another child was born to him, which is still living. The oldest of the children has attained the age of twenty-one years. The question is, whether all three of the children participate in the gift, or only the two who were in existence when the testator died. A bequest of a corpus or aggregate fund to children as a class, where the gift is not immediate, vests in all the children in existence at the death of the testator, but so as (where there is no evidence of intention to the contrary) to let in children subsequently coming into existence before., the period of distribution. Where, therefore, there is a postponement of the payment of the legacy until a period subsequent to the death of the testator, every person answering the description at the time fixed for the division will be entitled, though not in esse at the death of the testator ; unless it is apparent from the will that the testator intended to limit the legacy to such of the class as would answer the description when the will took effect by his death. Hawkins on Wills 71, 72; Theobald on Wills 143; Heater v. Van Auken, 1 McCart. 167; Feit v. Vanatta, 6 C. E. Gr. 86; Jenkins v. Fryer, 1 Pars. 46, 53; Locke v. Lamb, L. R. (4 Eq.) 372; Gimblett v. Purton, L. R. (12 Eq.) 427. Words directing a division or distribution between two or more persons or objects at a future time are equivalent to a direction to pay at that time. Jar. on Wills 655; May v. Wood, 3 Bro. C. C. 471. The evidence of intention to confine the gift to the two children existing at the time of the testator’s death, to be drawn from the fact that in directing the distribution the testator has used the word “ between,” is too slight to be of any value. Myres v. Myres, 23 How. Pr. 410. The three children are entitled to the fund in equal shares, to be paid to them as they respectively attain to their majority.