estate.98 And where the actual distribution is postponed till the termination of the life-estate, for the convenience of the estate, and not to determine who shall be entitled, it does not hinder the estate, given over, from vesting in those entitled, at the death of the testator.99 The case of Beck v. Burn,100 which seems to hold a contrary rule, is here doubted, or denied to be law. But it has been held, that where a sum of money is given to be divid ed among a class, when the oldest attains twenty-one years, whether the gift be vested or contingent, all who come into the class before the period of division are entitled to shares. 101 The construction is generally in favor of vesting.102 And a gift over is allowed to operate, notwithstanding the intervening estate may fail, for a reason not named in the will, or probably in the contemplation of the testator.103 45. The general rule, both in England and in the American states, in regard to the time of vesting of legacies given to a class, seems to be that it shall be deferred until the time of payment, especially where they are charged upon real estate.1 104 98 Adams v. Robarts, 25 Beav. 658. See also, upon the question of the vesting of legacies, Smith v. Colman, 25 Beav. 216; Edwards v. Edwards, 15 Beav. 357; Home v. Pillans, 2 My. & K. 15. In the two latter cases the subject is very elaborately considered, and the authorities extensively reviewed. "Leeming v. Sherratt, 2 Hare, 14; Leake v. Robinson, 2 Mer. 363; Packham v. Gregory, 4 Hare, 396; Neatherway v. Fry, Kay, 172; Hearn v. Baker, 2 Kay & J. 383. See also Lloyd v. Lloyd, 3 Kay & J. 20; Gillman v. Daunt, id. 48; Bennett's Will, id. 280; Wharton v. Barker, 4 Kay & J. 483; Maddison v. Chapman, id. 709; De Vane v. Larkins, 3 Jones, Eq. 377. 100 7 Beav. 492. 101 Mann v. Thompson, Kay, 638. 102 Day v. Day, Kay, 703. See also Porter's Trust, in re, 4 Kay & J. 188; Wildman's Trust, in re, 7 Jur. N. s. 121. 103 Warren v. Rudall, 4 Kay & J. 603. The cases upon the subject, and especially Attorney-General v. Hodgson, 15 Sim. 146, and Philpott v. St. George's Hospital, 21 Beav. 134, are here thoroughly reviewed. See also Corbett's Trusts, Johns. Eng. Ch. 591; Penny v. Clarke, id. 619. 104 Remnant v. Hood, 6 Jur. N. s. 1173. This was a decision of the Chancery But it was said, a portion for younger children, so secured, may be held to vest when the child comes of age, although he die before the settler. 46. But where the gift is to all of a class when and as they attain a prescribed age, the construction has been that the period named had reference to the estate becoming absolutely fixed in possession. And where there is a provision for the estate going over, in case no child attains that age, it affords strong reason for saying, that the testator only intended the estate to be divested upon this condition subsequent.105 47. It has generally been considered, that, where real and personal estate are included in the same bequest, and the real estate is held vested, the same construction will be applied to the personal estate.106 48. In the later English cases there is manifested a very uniform tendency to hold, in all bequests of the residue of an estate to children, as a class, and where the vesting is in the first instance postponed to a given age, and this is accompanied with a direction which gives a discretion to apply the whole or a part of the intermediate income for the maintenance of such Court of Appeal, affirming the decision of the Master of the Rolls. See also White v. Baker, 6 Jur. N. s. 591, where it is said, that the case of Scurfield v. Howes, 3 Br. C. C. 90, is not at variance with the other cases, as suggested. 1 Jarman on Wills, 704. And the American courts adopt the rule stated in the text. Hawkins v. Everett, 5 Jones, Eq. 42; Simpson v. Spence, id. 208. But see Fairbault v. Taylor, id. 219; Gay v. Baker, id. 344; Whitehead v. Lassiter, 4 id. 79; Wessenger v. Hunt, 9 Rich. Eq. 459. 105 1 Jarman, 812; Edwards v. Hammond, 3 Lev. 132; Lord Langdale, M. R., in 12 Beav. 198. It is unquestionably true, as suggested by Mr. Jarman, (vol. 1, p. 813,) in regard to Vawdry v. Geddes, 1 Russ. & My. 203, where the estate was held contingent, that many of the cases have been decided upon too narrow grounds, upon a single circumstance, without taking into account others. of equal or greater force, and which in other cases have controlled the decision. Bland v. Williams, 3 My. & K. 411. 106 Farmer v. Francis, 2 Sim. & Stu. 505; Tapscott v. Newcombe, 6 Jur. 755; James v. Lord Wynford, 1 Sm. & Gif. 40. children, and the bequest contains a provision disposing of the shares of such as die before attaining that age, in any mode, either absolutely or upon contingency, that the gift over is to be considered as explaining the testator's intention to be, that the absolute ownership only was intended to be suspended, and in the mean time that the legatees should take vested interests, subject to be divested upon the failure to reach the prescribed age, 107 49. The conclusion of the learned author and editors of the last English edition of Jarman on Wills, is: That although some of the cases point to a rule containing all the cases upon this subject, "yet the state of the authorities, on the whole, hardly warrants any general position of this nature." 108 50. We think, however, that it may be safely affirmed of the general force and effect of the more recent English cases, that they do establish the propositions : (1.) That it is competent for the testator in terms to direct whether the estate over shall vest or not, and when this is done all construction is excluded.10 109 (2.) That where there is reasonable ground for saying that, 107 Davies v. Fisher, 5 Beav. 201; Harrison v. Grimwood, 12 Beav. 192. Lord Langdale, in the case first cited, quotes authority to show that the dicta of Sir J. Leach, M. R., in Vawdry v. Geddes, supra, and Bland v. Williams, supra, in conflict with the rule there laid down by him, were not tenable. See also Bree v. Perfect, 1 Coll. 128. 108 1 Jarman, 816. 109 In Thompson v. Thompson, 28 Barb. 432, where the will in terms provided that the income of the testator's estate should be applied to the support of the testator's children during minority, and that upon the arrival of his sons at the age of twenty-one years, their shares should be paid to them, and that these shares should vest at this time and not before; provided that if any son should die before the age of twenty-one, leaving issue, such issue should stand in the place of the parent, it was held that the shares vested in interest at the testator's death, liable to vest in possession upon the sons arriving at full age, and that where one son died before the age of twenty-one without issue, his share would be distributed according to the statute of distributions. upon the whole, it is fair to suppose the testator expected a devisee or legatee over to take a vested interest, the court will so construe the bequest. (3.) That no estate will be held contingent unless very decisive terms of contingency are used in the will, or it is necessary to hold the same contingent in order to carry out the other provisions and implications of the will. 51. In addition to what we have already stated in regard to what estates are devisable,110 it may be proper to state here that all estates where there is any present interest, however remote or contingent, are devisable and transmissible by descent. It is not always easy to define clearly what estates are devisable or transmissible by descent. It seems clear that all vested estates are so devisable and transmissible, even when liable to be defeated by the happening of conditions subsequent. But where the bequest is to a class, as to children when they attain a certain age, or survive any other event, so that the vesting of any interest is made to depend upon the continuance of the life of the devisor until a certain event, it has been said there is nothing which is properly devisable, or which can pass by descent, until the contingency becomes absolute. But if the full enjoyment of the estate is only deferred until the happening of some collateral event, and there is no provision for divesting the estate upon the failure of that event, there is such a vested interest as will pass by devise, or descent. As where the testator bequeathes his personal estate to A, and if he shall die without issue to B, there is such a vested interest in B if he survive the testator, that, although he should die in the lifetime of A, the estate will pass under a devise from him, or will go to his personal representatives, in the event of A dying without issue.112 110 Ante, pt. 1. § 30, pl. 16. 11 Jarman, 817; Read v. Gooding, 21 Beav. 478. 11 Barnes v. Allen, 1 Br. C. C. 181. See also Perry v. Woods, 3 Vesey, 204, 208. In the State of New York, any estate is held devisable, as being a 52. In Leeming v. Sherratt,113 Vice-Chancellor Wigram said: "If there is any case which decides, as an abstract proposition, that a gift of a residue to a testator's children, upon an event which afterwards happens, does not confer upon those children an interest transmissible to their representatives, merely because they die before the event happens, I am satisfied that case must be at variance with other authorities." It was accordingly here decided, that, where the testator bequeathed the residue of his estate, real and personal, to trustees, to convert the same into money and pay it over equally to all the testator's children, so soon as the youngest shall attain twenty-one years of age, and in case of the death of any of the children, leaving lawful issue, the share of such child to go to such issue, and in default of issue, to the survivors, it was held that the share of such children as attained twenty-one, but died before the time of division, passed to their representatives. 53. And in a very recent case,' 114 where the testator devised his real estate to trustees to expend the income in the maintenance of his children, until the youngest should attain twentyone, and then to convert the same into money and divide the proceeds among his children in certain proportions named, it was held that the children took vested interests upon the decease of the testator, and that the share of a daughter dying before twenty-one passed to her representatives. The Master of the Rolls, Sir J. Romilly, here distinguishes between this case and that of Leeming v. Sherratt,113 upon the ground that that was a bequest to a class, and in such cases, where one possibility coupled with an interest, where the person in whom the interest is to vest, in the event contemplated, is known, or capable of being ascertained, and the terms descendible and devisable are convertible. Pond v. Bergh, 10 Paige, 140. 113 2 Hare, 14, 23. See also Boulton v. Beard, 3 DeG., M. & G. 608; Brocklebank v. Johnson, 20 Beav. 205; In re Smith's Will, ib. 197; Parker v. Sowerby, 1 Drew. 488, 496; Lloyd v. Lloyd, 3 Kay & J. 20. 11 Cooper v. Cooper, 7 Jur. N. s. 178 (1861). |