also in this case, that a gift over of a legacy does not hinder the vesting, but only diverts the legacy, upon the happening of the precise contingency named, it being in the nature of a condition subsequent, and to be strictly construed.134 But this rule has not been applied strictly to cases where an estate over after a devise for life is made dependent upon the first devisee, being a widow, continuing such, and if she shall not marry again, it being construed as equivalent to a provision that the estate over shall take effect, if the prior estate is determined either by marriage or death.135

60. But it seems to be well established, that an estate in remainder will be held contingent, where clearly so expressed, however inconvenient the consequences which may result from it. Thus, where the testator, after devising to his wife the use of his real estate, while she remained his widow, provided, that if his wife should marry or die, the land should then be equally divided among his surviving sons, each son as soon as he came into possession of the real estate paying $60, to be equally divided among his daughters, it was held that the remainder thus given to the sons was contingent, until after the death or marriage of the widow, and that upon her death the estate vested in the surviving son, to the exclusion of the heirs of a deceased son, who died before the widow, but after the testator.136

61. In Pennsylvania, the questions affecting contingent and

pay a sum to B within two years from the testator's decease, does not lapse as to the sum to be paid B, by his decease within the two years, but the same will go to his personal representatives. Wheeler v. Lester, 2 Bradf. Sur. Rep. 213; Same v. Same, id. 239.

134 See also Adams v. Beekman, 1 Paige, 631.

135 Luxford v. Cheeke, 3 Lev. 125; Gordon v. Adolphus, 3 Br. P. C. 306 ; Lady Fry's Case, 1 Vent. 199, 203; Ferson v. Dodge, 23 Pick. 287; Bates v. Webb, 8 Mass. R. 458; Whitney v. Whitney, 14 Mass. R. 88; Chappel v. Avery, 6 Conn. R. 31.

16 Olney v. Hull, 21 Pick. 311. See also Emerson v. Cutler, 14 Pick. 108.

vested estates seem to have received a similar construction with that which prevails in England, and in the other American states. In a recent case 137 in that state, the rules of construction affecting this subject are thus stated: The law favors an absolute rather than a defeasible estate; a vested rather than a contingent one; the primary rather than the secondary intent; the first rather than the second taker, as the beneficial object of the testator's bounty; and a distribution as nearly conformed to the general rules of inheritance as is consistent with the language of the will. This subject received a careful discussion and examination in the late case of Letchworth's Appeal,188

1 Smith's Appeal, 23 Penn. St. 9. The general principles here announced are of the most wholesome and unquestionable character, and are illustrated by the following cases in that state: Patterson v. Hawthorn, 12 S. & R. 112; King v. Crawford, 17 S. & R. 118; Magoffin v. Patton, 4 Rawle, 113; King v. King, 1 W. & S. 205; Donner's Appeal, 2 id. 372; Lamb v. Lamb, 8 Watts, 184; Moore v. Smith, 9 Watts, 403; Seibert's Appeal, 13 Penn. St. 501; Reed v. Buckley, 5 W. & S. 517; Bayard v. Atkins, 10 Penn. St. 15; Candler v. Dinkle, 4 Watts, 143; Price v. Watkins, 1 Dall. 8; Fleck's Estate, 1 Parsons, 126; Newport v. Cook, 2 Ashm. 332; Maxwell v. McClintock, 10 Penn. St. 237; Masden's Estate, 4 Whart. 428. A bequest of a sum of money to be paid at a future period is a vested legacy; but if there be no gift or bequest independent of that fixed for the payment, it is contingent. Thus, a bequest of a sum of money to grandchildren, to be paid to them respectively when they shall severally arrive at the age of twenty-one years, is a vested legacy. Bowman's Appeal, 34 Penn. St. 19.

158 30 Penn. St. 175. This subject is discussed in other cases in this state, but these later expositions of the principles involved afford the surest guide to the present state of the law, and will produce less confusion than if we attempted to analyze all the cases found in the large number of reports in that state. See Talbot v. Calvert, 24 Penn. St. 327. The late case of Young v. Stoner, 37 Penn. St. 105, reaffirms the same general principles, as applicable to the facts of that case, which was a devise to the brother of the testator until his children should attain the age of twenty-one years, and then to such children in fee, charged with the payment of certain sums to the testator's other brothers and sisters, and it was held to create a vested remainder in fee in the children, subject to the particular estate for years; and that the legacies to the rest of the testator's brothers and sisters vested at the death of the testator, and the chil

where it was decided that the law always inclines to hold the whole interest in property as vested rather than contingent, and therefore in case of doubt it declares the interest vested; that a devise or legacy depending upon an event that is sure to happen is vested, if the happening of the event does not form a part of the description of the devisee, and if the suspensive expressions can, consistently with, or by the aid of, other parts of the will, be properly interpreted as referring, not to the vesting of the title, but to the vesting of the enjoyment. In this case the will was thus expressed: "At and after the decease of my said wife, and in case she should marry, and when my youngest child shall arrive at the age of twenty-one, then it is my will that all my estate shall be distributed by my executors agreeably to the intestate laws of this state, provided, that in case all my said children shall die without leaving lawful issue, during the lifetime of my said wife, then and in such case, I

dren of such as died after that would take the shares of such deceased parent. Chew's Appeal, 37 Penn. St. 23.

Upon the devise of real estate to A for life, or for any other term upon which a remainder may be dependent, and then over, whether to persons by name or to a class, the estate over vests at the decease of the testator. And whether it be to the children of the person taking the particular estate, or to the children of any other person, the limitation will embrace not only those alive at the death of the testator, but all who shall come into existence before the period of distribution, unless expressly limited to survivors. And therefore, where the remainder was limited to the surviving children for life, their heirs and assigns, &c., it was held to refer to the death of the testator and not of the first taker, and therefore the share of one tenant in common, who deceased after the death of the testator, and before that of the tenant for life being vested, will descend to heirs. Ross v. Drake, 37 Penn. St. 373. And where the evident intent of the will is to give the parent a life interest, with remainder to the children of such parent, the court will construe the interest, as so far vested as to be transmissible to grandchildren, whose parents decease during the continuance of the life-estate. Lantz v. Trusler, 37 Penn. St. 482. In the case of Burd v. Burd, 40 Penn. St. 182, the same doctrines are reaffirmed, and the case made to turn upon the point whether the contingency attaches to the gift or the time of payment, but all doubtful constructions are made to favor vesting.

;

devise and bequeath to my said wife all my estate, real, personal, and mixed, to her and her heirs and assigns forever and it was held that the children of the testator took vested interests under the will, and that the husband of one of the daughters, who died before the time of distribution, leaving no issue, was entitled to her share, the learned Chief Justice Lowrie - adding, "The law of the land so declares, and it is right."

62. The same general principles have been recognized in most of the American states where such questions have arisen. Many of the cases are collected in the notes of Mr. Perkins, in his edition of Jarman.139 The subject has been discussed by many of the American courts within the last few years. Thus, in New Hampshire,140 where the testator bequeathed all his estate to a trustee, to invest in his discretion, and to expend for the benefit of his daughter not exceeding six per cent. of the amount, including interest, until she arrived at the age of twenty-one, and then to pay her in his discretion,

191 Perkins' Jarman, (ed. 1859,) 758, and note. See Gifford v. Thorn, 1 Stockt. Ch. 702; Bunch v. Hurst, 3 Dessaus. 273; Perry v. Rhodes, 2 Mur. 140; Caldwell v. Kinkead, 1 B. Mon. 228; Gregg v. Bethea, 6 Porter, (Ala.) 9; Roberts / v. Brinker, 4 Dana, 570. Mr. Fish, in his edition of Wms. Exrs. 1859, vol. ii. p. 1083, has a carefully prepared note upon this subject, in which he refers to many of the American cases, and the following among others, which will be found to support the doctrines of the text: Spence v. Robins, 6 Gill & J. 507; Boon v. Sinkler, 1 Bay, 369; Tazewell v. Smith, 1 Rand. 313; Lemonnier v. Godfroid, 6 Har. & J. 472; Chesnut v. Strong, 1 Hill, Ch. 123; Kibler v. Whiteman, 2 Har. 401; Watson v. Woods, 3 R. I. R. 226; Bridgewater v. Gordon, 2 Sneed, 5; Gill v. Weaver, 1 Dev. & Batt. Ch. 41; Hogan v. Hogan, 3 Dana, 572; Hathaway v. Leary, 2 Jones, Eq. 264; Phillips v. Johnson, 14 B. Mon.

172.

140 Felton v. Sawyer, 41 N. H. R. 202. It is held in this state, where the statute of uses is in force, that a devise of land to one for the use of another creates no trust, but only a naked use, which the statute immediately executes, thus vesting the legal estate in the cestui que use. Hayes v. Tabor, 41 N. H. R. 521.

but not exceeding two thirds of the amount before she becomes thirty years of age, and at the age of thirty-five to pay her the whole, including interest; the daughter died at the age of twenty-four, it was held, that her personal representative was entitled to the whole fund immediately upon her decease. A devise to M. D., to descend to his youngest son and the oldest male heir of said son, and, on failure of such issue, to the heirs of M. D. forever, gives the youngest son of M. D. a life-estate only, the fee, subject to such contingent devise for life, vests in M. D.141 Where there is a devise to two in succession, and the first devise lapses by the death of the devisee during the life of the testator, the devise over takes effect immediately upon the death of the testator; 142 and it will make no difference that the intermediate estate is charged with the payment of debts and legacies, the devise over will take effect, clear of the charges.

63. It is held in Virginia, that a bequest of real and personal estate to the children of A, "provided either of them shall live to the age of twenty-one," and if not, then over, creates in the

141 Dennett v. Dennett, 43 N. H. R. 499.

142 Brown v. Brown, 43 N. H. R. 17, citing Yeaton v. Roberts, 28 N. H. R. 468; 4 Com. Dig. Estate by devise, K.; White v. Warner, 3 Doug. 4. The principle is recognized in New York. Lawrence v. Hebbard, 1 Bradf. Sur. Rep. 252; Goodall v. McLean, 2 id. 306; Campbell v. Rowden, 18 N. Y. Ct. of App. 412. A devise of land to A for life, remainder to B for life, remainder to the heirs of B, makes the estate of B contingent during the life of A, and his release of the title during the life of A will not estop the heirs of B from claiming the remainder of the estate after the death of both A and B. Hall v. Nute, 38 N. H. R. 422. So in a devise to one for life, remainder to his oldest son, the remainder is contingent, and not assignable during the continuance of the lifeestate, by him entitled in remainder. Robertson v. Wilson, 38 N. H. R. 48. A devise to testator's grandson, to be paid him when he shall arrive at the age of twenty-one years, vests at the death of the testator; and if the legatee die before twenty-one, the money will go to his representative. Brown v. Brown, 44 N. H. R. 281; s. P. Snow v. Snow, 49 Me. R. 159. But time is of the essence of the gift, it is contingent, and lapses by the death of the legatee before the time. Ib.