Thomas' Executors v. Anderson's Administrator.

In Monkhouse v. Holme, 1 Bro. C. C. 298, testator gave to his wife the interest of £800 for her life, and after her decease disposed of the £800 as follows: to B. £100, M. £200, &c. One of these reversionary legatees died before the widow. Lord Loughborough held the legacy vested. In The Attorney-General v. Crispin, 1 Bro. C. C. 386, the will gave several annuities, and after the decease of the annuitants, £50 each to the children of D. R. He had seven children, six of whom died before the annuitants. The legacies were held to be vested. Benyon v. Maddison, 2 Bro. C. C. 75; Scurfield v. Howes, 3 Bro. C. C. 77; Taylor v. Langford, 3 Ves. 119; Lane v. Goudge, 9 Ves. 226; Cousins v. Schroder, 4 Sim. 23; Locker v. Bradley, 5 Beav. 593; are all cases in which the income of a fund was given to one person for life, and at his death the principal was given to another, and in which the legatee of the principal died in the life of the legatee of the income; and it was held in all, that the legacy of the principal was vested, and did not lapse by such death.

The cases in the courts of this country maintain the same doctrine. Fay v. Sylvester, 2 Gray 171; Barton v. Bigelow, 4 Gray 353; Barker v. Woods, 1 Sandf. Ch. 129; are all cases in which the income of a certain fund was given to one person for life, and at her death the principal to other persons; and it was held that the gift of the principal was vested, and did not lapse by dying before the legatee of the income, and this was the point decided in each case. In Van Wyck v. Bloodgood, 1 Bradf. 154, the question arose under the same circumstances; the whole subject was there considered and examined by the surrogate with great learning and ability, and most of the cases bearing upon the question referred to and examined, and the same result is reached, that in such case the bequest of the principal vests at the death of the testator.

The conclusion to which these adjudications have reached is one founded on reason and principle, as well as authority, and will in most cases give effect to the intention of the

Thomas' Executors r. Anderson's Administrator.

testator, especially where the bequest is one to a child or a descendant.

In England, in this state and many other states, the legislature has changed the established doctrine of the common law, that a legacy lapses by the death of the legatee in the lifetime of the testator, so that the doctrine of lapse does not apply to a gift to a child or descendant of the testator.

The cases which seem to conflict with the above conclusion, are all cases in which the event or time upon or at which the legacy was given was uncertain or contingent, as upon the legatee arriving at full age, or being married, which may never occur; such provision makes the legacy itself contingent, and of course it becomes void by the death of the legatee before the event occurs. The words "at" and "when" in such cases annexed to marriage or coming of age in the gift itself, and not merely in the payment, are held to apply to the substance of the gift, and not to the time of payment, and it is in these cases of a gift or an uncertain event, that the contingency is held to be obviated by certain prior dispositions of the fund or its income. It is to such cases and to them only, that the distinction between a gift of a legacy at a future event, and the gift of a legacy to be paid at such event, applies. If the contingency does not apply to the gift, but only to the payment, the legacy vests, and the payment is postponed. A bequest of a sum to A when he shall arrive to the age of twenty-one, is contingent and may lapse. A bequest to A to be paid when he shall be twenty-one, vests the legacy, but postpones the time of payment, and the legacy does not lapse before that time.

In this case I do not think that the doctrine of appropriation can apply. No fund has been set aside or appropriated for the annuity by any competent court. Nor have the executors done any act by which either they or the legatee are bound, or entitled to consider the securities in which this $12,000 is now invested, as appropriated to this legacy, and as payment of it.

The administrator of Abby Anderson is entitled to receive

Keeler v. Green and Ridgway.

the sum of $12,000, with interest on it from the death of Mrs. Goble. The surplus, if any, must pass into the residue of the estate.

KEELER US. GREEN and RIDGWAY.

A stipulation in a lease of a quarry of a horse shoe shape, and having faces on the northwest, north, east, and southeast sides, "that said quarry shall be worked as the face is now opened," is not violated by quarrying one of the faces to a greater extent than another, and such quarrying will not be enjoined if the same general shape is preserved.

On motion to dissolve injunction upon coming in of the

answer.

Mr. A. Reed, in support of the motion.

Mr. G. D. W. Vroom and Mr. E. T. Green, contra.

THE CHANCELLOR.

The injunction restrains the defen lants from further opening the face of a quarry adjoining the feeder of the Delaware and Raritan Canal, leased to them by the complainant, beyond the face as opened at the time of the lease, and from depositing the stripping of the quarry over the northwesterly face, or within, on the interior or bottom of the quarry, or on the farm of the complainant, northwest of the quarry.

The complainant had demised this quarry to the defendants for three years from January 1st, 1868, by a lease, under seal, at the rent of $11,000 for the term, with a right of renewal for two years at a stipulated rent. stipulated rent. The lease provided that the lessees should have the right to use thirty men in taking out stone, but no more, except at a stipulated increase of rent for each additional man.

It contained also these stipulations: "That said quarry

Keeler v. Green and Ridgway.

shall be worked as the face is now opened, following the good merchantable stone as deep as such stone shall run and in good quarrying shape, and so far as the water will drain with the pipes laid therein."

"That the stripping shall be deposited, the first year of the term, south of the feeder, along the bank of the same, on land of said Keeler, or in any other place designated by said Keeler opposite said quarry, not exceeding that distance ; and after the first year the stripping shall be deposited within the quarry wherever it can be done without obstructing the future working of the same or covering the face thereof, and if this cannot be done, it shall be deposited as above stipulated for the first year of the term."

The bill alleges that the defendants were not working the quarry as the face was opened at the time of making the lease, and failed to follow up the good merchantable stone as deep as they run in good quarrying shape, and as far as the water will drain, and that they were stripping and working far to the south of the face as opened at the making of the lease. No other specification is given of the manner in which this stipulation is violated.

The answer fully denies this charge, positively and clearly, in as definite and particular terms as it was made, first negatively, and then by affirming that the quarry had been worked in the precise manner provided in the lease, with the exception of six stones on the bottom which had not yet been removed, but which the defendants intend to remove.

What the complainant intended to charge as the violation of this specification, cannot be ascertained from the pleadings. But from an expression in one of the affidavits annexed to the bill, and from the position taken by counsel in the argument, I infer that the complaint is that the quarry was not worked, and stone taken out to an equal extent from the face on every side. The quarry, at the date of the lease, had been opened and worked in a horse shoe shape, and its faces were on the northwest, north, and east, and southeast sides. The charge which I infer is, that it was worked mainly and

Keeler v. Green and Ridgway.

to the greatest extent on the southeast side, and not so much, if at all, on the northwest. In the first place, the answer fully and without evasion denies the breach of agreement as particularly as it is alleged in the bill. And in the second place, had the bill charged that the quarry was worked on one side more than the other, and the fact been admitted by the answer, the agreement does not appear to me to prohibit it. It only compels the defendants to work as the face was then opened, but does not oblige them to work every part of the face to the same extent. If they should take out fifty feet from one part of the face, and only ten feet from another, it is no breach of this agreement, provided they took out all the merchantable stone to the depth indicated, and left the face in good quarrying shape, which I must take to mean with a fair even surface, and not with jagged recesses. This is not opening a new face to the quarry, but simply working it from its old face as required by the lease. The face left after taking out stone to the extent of fifty feet, would not be in the same place or constituted by the same stone as the old one, but it is the same face in the sense in which that term is used in this lease. And the defendants have the right to remove the earth above the stone on the southeast side of the quarry, called in this lease the strippings, in order to get out the stone extending from that face to the southeast. So far as the injunction restrains the opening a new face to the quarry, it must be dissolved, not because the defendants have a right to open a new face, but because what they have done and propose doing, is not opening a new face.

The injunction also restrains them from depositing the strippings on the interior or bottom of the quarry. The bill alleges that the defendants have deposited strippings inside of the quarry to the height of thirty feet, and have thereby covered good merchantable store to the depth of four or five feet, and have obstructed the ingress to and egress from the quarry, and have covered the face of the quarry in some places, and have thus injured the future working of the quarry. The answer admits the deposit of VOL. VI.

C