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duty imposed by the 55 Geo. 3, ch. 184, sched. 3, upon the clear residue of money to arise from the sale of real estates.

That point was settled in the Atterney General v. Holford,(g) by the Court of Exchequer. George Bogg devised and bequeathed to trustees all his estate, freehold, leasehold, or otherwise denominated, consisting in part of a share in the New River water-works (which was freehold,) upon trust to make an immediate sale; and he declared that the profits should be deemed part of the residue of his estate thereafter disposed of, or go in aid (if necessary) of the rest of his property in discharge of legacies; and after bequeathing certain legacies, he gave the residue of his estate and effects, whatsoever and wheresoever, to Josiah Holford, his heirs, executors, &c. The personal estate was more than sufficient to pay the debts and legacies. And the question was, whether, as Holford chose to take the New River share as realty, his election should defeat the legacy duty? And the Court decided in the negative, upon the principle that the fund was in equity absolutely converted into personal estate by the will; and that, although Holford might prevent a sale by electing to take the share as it was, yet, it being money, which would go to his personal representatives if no such election were made, the exercise of that power could not be permitted to disappoint the duty which would attach upon the proceeds received by Holford from a sale of the property, which, so far as regarded the duty, ought to be considered as made.

CHAPTER X.

Of vested Legacies payable out of the Personal Estate.

It will be attempted in this chapter to ascertain the circumstances, under which a legacy will be vested or contingent, i. e. when the interest of the legatee will be so fixed as to be transmissible to his personal representative, although he die before the period arrives. for payment of the money; or when, from the terms of the bequest, or from the uncertainty of the event, upon which the legacy is made payable, no immediate interest passes to the legatee, but his title to the legacy depends upon his being in a condition to receive it when due.

In discussing these subjects, the following arrangement will be pursued:

SECT. I. When the gift of a Legacy is immediate, and no time appointed for payment of it.

SECT. II. When the gift of the Legacy is immediate, and the payment of it postponed to a future period,

VOL. I.

whether definite or uncertain.

1.-When the legacy will be vested—

As when directed to be paid at twenty-one,—Or
At the end of a particular term,—Or

So soon as debts are paid,—Or

(g) 1 Price, 426, 435.

3 B

So soon as the executors shall possess sufficient assets,-Or

So soon as particular lands are sold,—Or

So soon as the personal residue shall be laid out in the purchase of lands.

2.-When not vested.

SECT. III. Where there is no immediate express gift of the Legacy distinct from the time appointed for its

payment.

FIRST.-When contingent from the effect of conditional

words.

SECOND. When vested in consequence of those words not having been used by testators in a conditional sense.

1. When the legacy is given to a trustee, parent, or guardian for the legatee at a particular time

and to be managed or applied for his maintenance or benefit,-Or

2. Where the intermediate interest is not given for the
use or benefit of the legatee, but to another person,-
During the legatees minority,-Or

Until particular purposes are fulfilled,—Or
During life;-and then

IN REMAINDER to the legatee.

3.-Exceptions to the general rule of a remainder and particular interest, or estate vesting at the same time, upon the intention of testators.

SECT. IV. Of the vesting in interest and transmissibility of contingent executory Bequests.

SECT. V. Effect upon the vesting and devesting of Legacies, when they are subjected to a limitation over on the happening of a particular event. And1.-Where the gift is immediate, with a limitation to “survivors" upon the death of any of the legatees under twenty-one, &c.

2.-Where the event, upon which a legacy is given over, is so imperfectly conceived and expressed, as to render the testator's intention mere conjecture or impracticable to perform.

3.-Where the limitation over is, if the legatee die before receipt of the money, or before the sale of an estate. 4.-Where the limitation over is, in case of the death of the legatee generally.

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5. Where the limitation over is, "in case the legatee die unmarried, and without having children or issue."

6. When the contingencies, upon which legacies are

limited over, were held not to have happened, so as to divest the interests first given; And

7.- Construction of the words "payable," &c. in reference to the event introducing a limitaton over of legacies or portions, as, if any of the legatees die before their shares become payable, or payable, assignable, and transferable.

FIRST,-Of Legacies.

SECOND.-Of Portions.

SECT. VI. Effect of POWERS OF APPOINTMENT on the vesting and devesting of Legacies and Portions.

1.-Where the power is merely to ascertain the shares each legatee is to take.

2.-Where the gift depends upon an execution of the power.

SECT. VII. As to vesting generally.

1.-Instances of vested interests determining with the
lives of the legatees, and not transmissible.
2.-When the word "survivors" construed the same as
"others" in favour of vesting.

3. Where a legacy is directed to be sunk in the pur-
chase of an annuity.

4.-When a legacy is given generally “to be at the disposal of the legatee."

5.-Where a legacy is expressed to be given to answer a particular purpose for the benefit of the legatee, which purpose is disappointed and cannot take effect.

SECT. I. When the gift of a Legacy is immediate, and no time. appointed for payment of it.

In bequests to individuals, without specifying the periods when the money is to be received, it is payable at the end of a year next after the testator's death. This allowance to executors and administrators is merely for convenience, in order that the debts, entitled to a priority to legacies, may be ascertained, and the personal representatives of the testator may be acquainted with the amount of the assets, so as to be able to make a proper distribution of them. This delay of payment being adopted as a necessary and convenient arrangement for the due administration of the estate, and for no other purpose, will not prevent the legacies from vesting at the death of the testator. (a) Hence, if a fund be given to the children of A. those living when the testator died will take vested interests in it, which will entitle the personal representatives of such of them as happen to die within the year after the testator's decease to their shares. The cases upon this subject are collected in the second chapter of this work, which treats of the "Description of Legatees," (a) 10 Ves. 13.

and the periods when they are required to be in esse for the purpose of taking under the description.(b)

SECT. II. When the bequest is immediate, and payment of the legacy is alone postponed.

Courts of equity not being possessed of exclusive jurisdiction in testamentary matters, but the Ecclesiastical Court holding a concurrency with them, on subjects of this nature, have, in order to preserve uniformity of decision, adopted some of the rules of the latter tribunal, which were taken or borrowed from the Roman law. In consequence of this adoption, courts of equity have established a positive rule of construction.

1. That when a legacy is given to a person to be paid or payable at or when he shall attain the age of twenty-one, or at a future definite period, the interest in the legacy shall be considered to be vested in the legatee immediately upon the testator's death, as debitum in præsenti solvendum in futuro, the time being only annexed to the payment, and not the gift of the legacy. Hence it appears, that if the legatee happen to die before the payment arrives, his assignee or personal representative will be entitled to the legacy.(c)

Thus in Bolger v. Mackell, (d) the testatrix gave her residuary estate to Catherine, the daughter of James Winter, and to the legitimate children of her (the testatrix's) brothers John and James Snowden, in equal shares, the proportions of sons with the interest or accumulations, to be paid at their ages of twenty-one, and those of daughters at twenty-one or marriage, after deducting what might have been expended in their maintenance or advancement in the world. John Snowden had no issue, but James died leaving two sons, neither of whom attained the age of twenty-one. And the question was, whether, notwithstanding that circumstance, twothirds of the residue vested in them, so as to be transmissible to their legal personal representatives. And Lord Rosslyn was of opinion, that the two sons took vested interests, remarking, that the present was a mere bequest of the residue of personal estate, payable at twenty-one, so that the rule as to vesting must take place, which was not prevented by the addition of a direction that maintenance should be deducted.(e)

So in Jackson v. Jackson, (f) a testator bequeathed to his son R. 4001. "to be paid to him at the end of one year next after his (the testator's) death; and the further sum of 100l. at the death of his (R.'s) mother." R. having died before his mother, the question was, whether he took a vested interest in the 100l.? And Lord Hardwicke determined in the affirmative, observing, that the legacy of that sum was plainly vested, and the time of payment only postponed; for the former words "to be paid," were to be carried on, as they would clearly be, if turned into any other language.

(b) Ante, Chap. II. sect. 1. p. 59. 1 Ball. & Beat. 459. 2 Atk. 122. 2 Ves. sen. 209. 1 Bro. C. C. 532, in notis. 2 Bro. C. C. 658. and 2 Cox, 190. 1 Dick, 344. (c) In the Civil Code we find the rule laid down in these words: "Ex his verbis, do, lego, Alex Severina fileæ meæ et secundæ decem, quæ legata accipere debebit, cum ad legitimum statum pervenerit; non conditio fidei commisso vel legato inserta; sed petito in tempus legitimæ dilata videtur." Lib. 6. tit. 53. sect. 5. (d) 5 Ves. 509. See also Stapleton v. Cheales, Pre. Ch. 317. S. P. (e) Vide 13 Ves. 113. (f) 1 Ves. sen. 217

Also in Sidney v. Vaughan,(g) Mrs. Evans bequeathed to Edward Vaughan 100l. to be paid to him within six months after he should have fully served out his apprenticeship, to which he was then bound. Edward, instead of serving his time, ran away from his master, and died intestate after the period of his apprenticeship expired. The legacy was claimed by his administratrix, upon the ground that Edward took a vested interest in it from the death of the testatrix, as the gift and time of payment were distinct. And of this opinion was the Court of Chancery of Great Sessions for the counties of Glamorgan, &c. and decreed the legacy with interest, to the administratrix, from the end of six months after the expiration of the term of Edward's apprenticeship; a decree which was confirmed by the House of Lords.

The construction will be the same, if the payment of the legacies be expressly postponed until the testator's debts be discharged; for in this there is no contingency, the time is easily ascertained; and the direction is no more than what the law would have ordered without it, since legacies are only payable after the satisfaction of debts.(h)

So, if the testator declare that the legacies are not to be paid or enjoyed until the executors have realized his estate. Here, again, no inference arises that the legacies were not to vest until realization of the property, but the time of payment or enjoyment alone is referred to; which is a necessary event, capable of being reduced to certainty. A court of equity has said, it is the best general construction (for there may be exceptions as shown afterward) to consider the interests vested and in hand, though strictly, not collected. for the purpose of enjoyment, as between particular interests and the capital, and the Court will not conjecture in favour of an intention against the general rule.(i).

Accordingly in Gaskell v. Harman,(k) Lord Eldon thought, in opposition to Sir William Grant, that the will did not afford sufficiently clear evidence of the testator's intention to postpone the vesting of the bequests until the property was collected and received.

In Stuart v. Bruere (1), the intention to postpone the vesting till a sale of the estate was doubtful, for, although there were expressions pointing to an accumulation of the rents until the sale; yet, upon the whole, it was ambiguous whether the intention was to postpone the enjoyment of the tenant for life of the produce to increase for the benefit of the remainder-man of the capital, of which, at some time or other, the former was to have the enjoyment. That time, however, was not clearly expressed. There was nothing, therefore, to controul the rule, "that what is directed to be done is to be considered as done;" so that the tenant for life was held entitled from the decree (m).

The same observations apply to the cases of Entwistle v. Markland (n), and Sitwell v. Bernard (0), where the residue of personal property was directed to be laid out in the purchase of real estates, (g) 2 Bro. Parl. Ca. 254. 8vo. ed.

(i) 11 Ves. 498.

(h) See infra, p. 380. (k) 6 Ves. 159. 11 Ves. 489.

(6 Ves. 529. in notis, and see Faulkener v. Hollingsworth, stated 8 Ves. 558. (m) 8 Ves. 557. (n) 6 Ves, 528, in notis.

(0) Ibid. 522.

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