Post v. Herbert's Executors

The opinion of the court was delivered by The Chief Justice. It will be observed that by the legatory clause which prefaces this opinion, the testator, John Herbert, devises to his executors the farm in question, to hold the same in trust for the use of his son-in-law, Abraham Post, until the youngest child of the deceased daughter of the testator, the late wife of the said Abraham, should attain the age of twenty-one years. Accompanying this trust, is a power in the trustees, ■dependent on the written assent of the cestui que trust, to sell the land, putting the proceeds to' the same use during the same interval. Then follows the paragraph which has given rise to this controversy, containing a direction to the executors, “ after the said youngest child attains the age of twenty-one years,” to sell the said tract, if the same be not then already sold, and to divide the proceeds between the children of the said daughter of the testator, share and share alike. Martha A., one of the children of this daughter, having survived the testator, but dying before the youngest of said children had attained the age of twenty-one, the question now is whether this deceased child acquired, by force of this testamentary disposition, any interest in this fund which is transmissible to her representatives. On the part of the appellant,' it is insisted that the interest of this deceased legatee was conditional on her surviving to the period of distribution, which was the arrival of the youngest of the children to majority. Opposed to this, the respondents urge that the [543] interest of such legatee was vested at the death of the testator, that is, was not in anywise subject to the condition specified. It is an observable feature of the clause to be here construed, that it does not contain, in express terms, any immediate gift ■of the reversionary interest in this fund. The only gift to the children is embodied in the order that it be divided •among them, and that division is to be made on the happening of the future event of the youngest child reaching twenty-one. •Such a disposition, standing by itself, could not pass a present interest, but would leave the legacy itself contingent. A bequest to A, “at” a given age or marriage, or “when,” or '“from and after” his attaining a given age, is prima facie, contingent. ISTor does the circumstance that the gift is.to a class, affect the result. In Locke v. Lamb, L. R. 4 Eq. 373, a bequest of a sum of stock to be divided between all the ■chii.dren of .B, as they should attain his or her age of twenty-one years, was adjudged to go only to such of the children as attained the prescribed age; and in the leading case of Leake v. Robinson, 2 Merivale 363, the rule was treated as unquestionable, that by a mere direction to transfer or divide “ from •and after ” a given event, the vesting would be postponed until that event had happened. There are very many cases to the same purpose, but it would be altogether useless' to refer to them, for admitting the rule to be as here stated, and which is putting the case in the aspect most favorable for the appellant,. there are other considerations which I think must, obviously, control the result. The rule first stated, that where a legacy is given to a person when a future event happens, the legacy will be contingent until the occurrence of such event, is, like all other similar rulas applicable to wills, a mere judicial exposition of the natural meaning of a certain form of expression. It is not an artificial contrivance, which, when present, is to have a supreme effect, but is a rule simply because the phrases in ■question, considered intrinsically, and without qualification ■ab extra, import a definite testamentary purpose. The jdirase [544] ology has received its accepted interpretation, because it is; supposed that such interpretatioar mil carry out the view óf the testator. The consequence- is,, the- rule is always subject to-be modified or abrogated by the conditions of the case to which, it is ajrplied; aird thus a number of admitted exceptions to it have supervened. And it seems to me the present case is very clearly embraced in one of such exceptions.. The-rule and the exception to which I now refer, are very distinctly stated and explained by 'Vice-Chancellor Wigram,. in the- case of Packham v. Gregory, 4 Hare 398. His words are: “ If there is a gift to-■a person at twenty-one, or oir the happening of any event, or a direction to pay and divide when a- person attains twenty-one, .there, the gift being to- persons answering a particular-description, if a party cannot bring- himself within it, he is not entitled to take the benefit, of the gift. There is no gift in, those cases, except in the direction to pay,, or in the direction to pay and divide. But if, upon the whole will,, it appears-that the future gift is only postponed to let in some other-interest, or, as the court has commonly expressed it, for the-benefit of the estate, the same reasoning has never been applied to the case. The interest is vested,, notwithstanding, although the enjoyment is postponed..” Now in the present case,, it seems to me that the purpose of the testator in deferring the payment to the children of these-legacies until the youngest should come of age, is perfectly manifest. It Avas to keep the family together and provide a home for all the children until the period of distribution. I am at a loss to perceive-any other motive for this proAnsion.. The payment most evidently Avas not postponed on account of anything personal to tire legatees. There AArere six children,, and the eldest was over twenty-one and. the- youngest under six years of age when the testator diedso that the coming of age of the youngest was,, as to the class,, a disconnected event,. Avhich could not confer a. personal qualification on them as individual legatees. Without looking for the intention in other-parts of the will,. I think,, from this clause alone,, the purpose545 to postpone the payment of these legacies, solely for the convenience of the estate, and to let in the interest deposited in the son-in-law, is unmistakably shown. It is seldom, indeed, ■that, among the cases which have been adjudged, such intent has been so manifest A large number of cases which exemplify this subject will be found in the ordinary text writers. 1 Roper on Leg. 572; Hawkins on Wills 232; 1 Jarman on Wills 763. The doctrine has also been adopted and settled by several •decisions in the courts of this state. Fanly v. Klive, 2 Penn. 754; Wintermute v. Snyder, 2 Green’s Ch. 489; Vandyke’s Adm’r v. Vanderpool’s Adm’r, 1 McCarter 198; Howell’s Ex’rs v. Green, 2 Vroom 570; Thomas’ Ex’r v. Anderson’s Adm’r, 6 C. E. Green 22; Montgomery’s Ex’r v. Beatty’s Adm’r, Id. 324. My conclusion, therefore, on this point is, that by the paragraph of the will above quoted, an intent is shown to defer the time of the payment of these legacies to answer an obvious purpose, which was to vest an intermediate interest in the father of the legatees, and that the legal consequence of such an indication must be, to convert the direction to divide the moneys at a future time, into an immediate gift, that vested on the death of the testator. Nor. do I find any difficulty in the argument that in the present case, the event on the happening of which the payment is made to depend, being uncertain, the legacy itself must be considered contingent. This effect is produced only when the time, when the contingent event, on the happening of which the payment is to be made, is to take place, is uncertain. In such case, it may well be presumed that the testator did not intend to make any gift, unless the event should happen and the time of payment should be thus fixed. Thus, if here the legacies had been made payable on the marriage, instead of at the majority of the youngest child, the time of payment as well as the event on which it was to be made, would have been uncertain, and the legacies would not have vested antecedently to the occurrence of the marriage. But where a legacy is [546] given to A, payable to him at twenty-one, or when he arrives at twenty-one, there is no uncertainty as to the time when the money is to be paid, and the consequence is, if we consider such a -case on the assumption that the legatee need not survive to the prescribed age as a condition precedent to his right to claim the money, it will be manifest that all uncertainty is removed from the affair. It is upon this theory that the cases have been founded. Mr. Hawkins, in his treatise on wills, page 225, says: “ A bequest to A, at twenty-one, and a bequest to A, payable at twenty-one, do not much differ in expression ; yet one is a vested, the other a contingent gift.” • The meaning of this is, that where the gift is immediate, the interest vests at once; that is, the survival to the designated age is not a condition on which the legacy is founded ; and this being so, the reference to the majority of the legatee operates as a mere notation of the time' when the money is demandable. In the case of Atkins v. Hiccocks, 1 Atk. 500, Lord Hardwicke evidently points to this distinction. The bequest in that case was to Elizabeth Hiccocks of ¿£200, to be paid at the time of her marriage, or within three months after-wards, provided she married with the approbation of, &e. The legatee died unmarried, and the question was whether she took a vested interest, transmissible to her administrator, and the answer was in the negative, the Lord Chancellor saying : “ I am of opinion this was not a vested legacy; in the 'common cases of legacies to be paid at the age of twenty-one, there is a certain time fixed, not to the thing itself, but to the execution of it, and the time being so fixed, must necessarily come; but when the time annexed to the payment is merely eventual, and may or may not come, and the person dies before the contingency happens, I can find no instance in this court where it has been held that the legacy, at all events, should be paid.” And further on he says, that it has always been held, with regard to a legacy “ given to be paid at twenty-one,” that such a limitation of payment was debitum in presentí, solvendum in futuro. Boraston’s case, 3 Rep. 19, is also a leading authority on this subject. In it the devise was to a man and [547] his wife for eight years, and after that term the lands Avexe to remain to the executors of the devisor until such time as Hugh Boraston should accomplish his full age of twenty-one; the mesne profits to be employed by the executors towards the performance of the testator’s will; and when the legatee should attain trventy-one, then that he should enjoy the estate to him and his heirs. Hugh died before twenty-one, and the Court of King’s Bench decided that the remainder was vested in him on the death of the deAdsor, with a postponement of the possession until he completed the age of twentyone. Lane v. Coudge, 9 Ves. 226; Taylor v. Biddall, 2 Mod. 289, and Manfield v. Dugard, 1 Eq. Cas. Abridg. 195, stand on the same footing. It is plain from these cases and from a host of others that might be cited, that a direction to divide a fund on the coming of age of the legatees, or of any of them, will not prevent the legacy from being considered to be vested on the death of the testator’, if the intent to effect such purpose is otherwise shown. With respect to the further position that this bequest is to the children as a class, and not as individuals, and that, conse-1 quently, a joint tenancy Avas created, it is sufficient to point to the fact that the division is directed to be made between these legatees, “ share and share alike.” These are clear words of severance, denoting plurality of interests among the objects of the gift, and, therefore, the rule imroked is excluded. The authorities are clear upon this point. Uaiolcins on Wills 112; (Westcott v. Cady, 5 Johns. Ch. 335; Vreeland v. Van Ryper, 2 C. E. Green 134. The decree appealed from should be affirmed, with costs. Decree unanimously affirmed.