Quick's Executor v. Quick.

carried out if the legal meaning was given to the word heirs, but only by a positive subsequent disposition entirely inconsistent with that meaning. This was the foundation of the reasoning in the judgments of Lords Eldon and Redesdale in Jesson v. Wright; and the reasoning of Justices Erle and Williams in Jordon v. Adams, by which they show that the clear provisions of the will in that case took it out of the rule, is founded on the same principle; and of the declaration of Chief Justice Whelpley in Kennedy v. Kennedy, "that the words heirs or heirs of the body will yield to a particular intent that the estate shall be only for life, and that may be from the effect of the superadded words, or any expressions showing the particular intent of the testator, but that must be clearly intelligible and unequivocal." And the effect of the strong and clear words "to him, his heirs and assigns forever," the words peculiarly chosen for giving a fee simple, will be limited and overruled by clear words in a subsequent part of a will, giving the estate over in case the devisee dies without leaving issue at his death.

In this case, the paramount intent of the testator to give this farm to the heirs of Ezekiel, at his death, is not overruled or frustrated. The persons to whom it will go are his heirs, in any sense of the term; the same persons to whom it would be given by the rule in Shelley's case. And this paramount intent is not affected, nor is the word heirs given a sense or meaning different from what was its legal meaning; it is used precisely in what was its legal meaning in 1808, at the date of this will.

The will of the testator that the males shall, in the division, have two shares to each share by a female, is expressed as clearly, unequivocally, and intelligibly as is required in the cases above cited. And the only way by which this intention can be carried out, is to declare that this devise is not within the rule in Shelley's case. By this conclusion, the intention of Jacob will be fully carried out, without violating any rule of law, and the intention of

Quick's Executor v. Quick.

Ezekiel, founded on this construction of the will, will also be carried into effect. He had a right to assume this to be the legal construction, because this court, in Quick v. Quick, Sart. 4, where a devise in the same will to another son, made in the same words, came in question, the court took for granted that it gave an estate for life only, with remainder over to the persons who were his heirs.

Although the act of 1780 was changed at the death of Jacob, in November, 1816, yet this will speaks as of the time it was executed, and the farm will go to Ezekiel's children as if he had died in 1808; that is, one-fifth to each of his four sons, except Richard, one-fortieth to each of the four sons of his daughter Elizabeth, one-fifteenth to the son of his daughter Sarah, and one-thirtieth to her daughter.

Richard Quick conveyed one-sixth of this farm to his father, Ezekiel, in his lifetime. On account of the contingent nature of his estate, that deed may not have been efficient as a conveyance in Ezekiel's life; yet, as it was with full covenants, and Richard survived his father, it is a good conveyance by estoppel, and the devise of that one-sixth to Jonathan vests it in him, in addition to his own one-fifth. He is, therefore, entitled to eleven-thirtieths of this farm, and Richard retains one-thirtieth. The strip of eight acres which Ezekiel annexed to this farm, as part of it, forever, by virtue of that annexation must go with it, and be considered as devised to the owners of the farm.

Upon this view of the case, neither the homestead farm occupied by Ezekiel, nor the strip annexed to it, can be held as part of his property undisposed of; and, of course, the executor has no power to sell either.

The examination of the case has satisfied me that the diversity of views taken of the questions involved, by the courts, made it a proper case for the complainant to ask the opinion of the court upon his duty and power, and I shall, therefore, order his costs, including a proper counsel fee, to be paid out of the estate. As the defendants have caused no unnecessary expense, but only such as was necessary to bring

Thomas' Executors v. Anderson's Administrator.

the case fairly before the court, I think their taxable costs ought to be paid out of the estate; but their counsel fees and other expenses must be paid by themselves. These expenses would have been necessarily incurred in settling their rights as between themselves.

THOMAS' EXECUTORS vs. ANDERSON'S ADMINISTRATOR and others.

A gift of the interest of $12,000 to A during life, and, at her death, of the principal to B, is a vested legacy, and if A survives B, goes, upon her death, to B's representatives.

This cause was heard upon bill and answers.

Mr. A. P. Condit, for complainants.

Mr. Bradley, for residuary legatees.

Mr. Teese, for Anderson's administrator.

THE CHANCELLOR.

At

The main question in this case arises upon the will of Luther Goble, deceased. It is whether a bequest to his daughter Abby, whose administrator is one of the defendants, was vested, or contingent, and lapsed upon her death. The will provides as follows: "I give unto my beloved wife, during her natural life, the yearly interest of $12,000, to be paid to her in half-yearly payments, by my executors. her death I give the said $12,000 to my and her daughter Abby." Abby, the daughter, was twelve years old at her father's death, married Richard Anderson, and died in the lifetime of her mother, leaving children who are still living. The bill is filed by the executors of the surviving executor of Luther Goble, who have the fund in their hands, and pray

Thomas' Executors 2. Anderson's Administrator.

the direction of the court as to the disposition of it. The residuary legatees under the will of L. Goble, the administrator of Abby Anderson, and the administrator of the widow of Luther Goble, are defendants.

The residuary legatees contend that the legacy to Abby was contingent on her surviving her mother, and lapsed, by her death, into the residuum of the estate.

A legacy given at a future day, or at or upon a future event, may be vested or contingent; it is always contingent, if given at or upon an event which may or may not happen, as upon coming of age, or marriage, or surviving some living person. But it is further contended that a legacy given at a certain definite time, as ten years after a fixed day, or at a certain event, as at the death of A, which is certain to occur, is a contingent legacy, and will lapse if the legatee dies before the day or event.

This is contrary to the settled doctrine of the common law as to the vesting of remainders in real estate. By that, any remainder given upon an event which is certain to happen, as the death of a living person, is vested, and not contingent.

This doctrine as to legacies, that when given at a future day or at a certain event they will lapse by the death of the legatee, is laid down by elementary writers subject to some exceptions, which render the application doubtful. It seems to be founded on, and supported by a single decided case, though countenanced by the dicta of judges in one or two other cases, in which it was not the question decided. In 1 Jarman on Wills 760, it is said that when a sum of money is bequeathed at the expiration of a definite period, say ten years from the decease of the testator, the vesting, not the payment merely, is deferred; it is there joined, and put on the same footing, with a bequest to one at the age of twentyone, which is always an uncertain event. The authority cited is Smell v. Dee, Salk. 415. In 1 Williams on Executors 1107, the doctrine of that case is cited with approbation, and the dicta in Bruce v. Charlton, 13 Sim. 68, are referred to in support of it.

Thomas' Executors v. Anderson's Administrator.

The case of Smell v. Dee expressly supports that doctrine, and the decision is founded upon it, but the decision is not supported by the authorities referred to, and is contrary to the uniform current of later decisions in England and this country, and the number maintaining the opposite doctrine is large. The dictum of Vice Chancellor Shadwell, in Bruce v. Charlton, is simply a repetition, almost verbatim, of the doctrine laid down in Smell v. Dee, stating it to be the established law. He was not called on, in that case, to examine into or apply it. He applies it to a supposed case, not to the facts on which he was called to decide. This doctrine is said to be founded on passages in Swinburne, and on the doctrine of the Civil law, which is the foundation, to a great extent, of our testamentary law as to legacies. But Swinburne expressly states that a legacy given at a future day or certain time, as at Easter, 1600, vests at the death of the testator. Part VII, section 23. And the Civil law is stated by Domat in section 8, title 1, (of Testaments), book 3, part 2, as follows: "The terms of legacies fixed to a certain day, such as the first day of such a year, or within such a time, do not make a condition on which the legacy may depend; and the effect of these terms is only to defer the delivery of the legacy, the right to which is already acquired by the legatee, and which, were it not for the term, would be due instantly." And although in the next section, the rule of the Civil law is stated to be different when the legacy is given at the death of another, yet it is clear that the rule in Smell v. Dee is not derived from or founded on the Civil law, for that was a legacy payable in ten years.

In Williams on Executors 1117, reference is made to a note in Fearne 554, as supporting the doctrine; that note relies on two cases, neither of which in any way sustain the doctrine contended for.

The English cases, in which a legacy is held to be vested when the income of a fund is given to one for life, and the principal to another at the death of such legatee for life, are numerous, and in accord with each other.