under a devise in trust for the testator's two daughters for life, "then in trust for the child or children of my said daughters, share and share alike," the children took a vested estate upon the testator's death, subject to reopen and let in children subsequently born.27 § 993. Gift "Payable" When Beneficiary Attains a Certain Age. A bequest "payable" or "to be paid" to a person "at" or "when" he shall attain a certain age, or at the end of any other certain determinable time, is construed to have been intended to confer upon him a vested interest immediately upon the death of the testator, which shall be transmissible to his executor or administrator; for the words "payable" or "to be paid" are supposed to eliminate the factor of time from the gift itself, and to cause it to attach to the enjoyment of possession merely.28 Directions for a division or distribution at a main to the use and benefit of his daughter," the title in remainder will vest in the daughter upon her father's death.-Curtis v. Fowler, 66 Mich. 696, 33 N. W. 804. 27 Olmstead v. Dunn, 72 Ga. 850. See, also, McArthur v. Scott, 113 U. S. 340, 28 L. Ed. 1015, 5 Sup. Ct. 652; Ballentine v. Wood, 42 N. J. Eq. 552, 9 Atl. 582. 28 Dawson v. Killet, 1 Bro. C. C. 119, 123; Barnes v. Allen, 1 Bro. C. C. 182; Jackson v. Jackson, 1 Ves. Sen. 217; Wadley v. North, 3 Ves. 364; Edmunds v. Waugh, 4 Drew. 275; Williams v. Clark, 4 De Gex & S. 472; Harvey v. Harvey, 2 P. Wms. 21; Chaffers v. Abell, 3 Jur. 578; Lister v. Bradley, 1 Hare ד future time, added to a gift which without them would confer an immediate interest, do not postpone the vesting;29 and it matters not whether the direction to pay or the words of division precede those of the bequest or follow them.30 Thus, where a bequest was made to a legatee "if he shall arrive at the age of twenty years, then to be paid over to him by my executor," his interest was vested and not contingent upon his attaining majority.31 § 994. Gift Upon Attaining a Certain Age. A gift to one in the event of his attaining a certain age differs from one where payment only is postponed.3 Where the gift is not made in express terms, but is to be inferred from a clause which provides for the fund being kept until certain persons attain a specified age, and then distributed, time is of the essence of the gift, and the estate will not vest until the expiration of the period 10; Rofe v. Sowerby, Tam. 376; See, also, Fisher v. Johnson, 38 See, however, Shum v. Hobbs, 3 Drew. 93. As to gifts to a class when they attain a certain age, see §§ 882, 883. 29 May v. Wood, 3 Bro. C. C. 471. 30 In re Bartholomew, 1 MacN. & G. 354; King v. Isaacson, 1 Smale & G. 371; Livesey v. Livesey, 3 Russ. 287, 542. 31 Furness V. Cox, 1 Cush. (Mass.) 134, 48 Am. Dec. 593. 32 Murray v. Tancred, 10 Sim. 465; Gardiner v. Slater, 25 Beav. 509; Locke v. Lamb, L. R. 4 Eq. 372. See § 882. named. If the words "payable" or "to be paid" are omitted, and the legacy be given "at" a certain age, or "if," "when," "in case," or "provided" the legatee attain a designated age, or to any other definite future time, his right to the enjoyment of the bequest will depend upon his being alive at that time, and if he die in the interim his representatives will not be entitled to receive the legacy in his stead.34 Where no conditions are annexed to the gift itself, but the time of payment thereof is postponed until the legatee attain a certain age, or until the expiration of any definite period of time, the title will vest immediately upon the death of the testator, notwithstanding that the enjoyment of possession may be deferred.85 For all estates, both legal and equitable, are regarded as vesting 33 Smith v. Edwards, 23 Hun (N. Y.) 223. 34 Booth v. Booth, 4 Ves. Jun. 399; Breedon v. Tugman, 3 Myl. & K. 289; Vize v. Stoney, 2 Dru. & Walsh 659; Watson v. Hayes, 9 Sim. 500; Bruce v. Charlton, 13 Sim. 65; Smell v. Dee, 2 Salk. 415; In re Wrangham's Trust, 1 Drew. & S. 358; Cruse v. Barley, 3 P. Wms. 20; Onslow v. South, 1 Eq. Cas. Abr. 295, pl. 6; Butcher v. Leach, 5 Beav. 392; Hickling v. Fair, L. R. (1899) A. C. 15; In re Wintle, L. R. (1896) 2 Ch. 711; Heberton v. McClain, 135 Fed. 226; Kibler's Admr. v. Whiteman, 2 Har. (Del.) 401; Caldwell v. Kinkead, 1 B. Mon. (40 Ky.) 228, 231; Dohn v. Dohn, 110 Ky. 884, 62 S. W. 1033, 64 S. W. 352; Shattuck v. Stedman, 2 Pick. (19 Mass.) 468; Clapp v. Stoughton, 10 Pick. (27 Mass.) 463; Dusenberry v. Johnson, 59 N. J. Eq. 336, 45 Atl. 103; Marsh v. Wheeler, 2 Edw. Ch. (N. Y.) 156; Jackson v. Winne, 7 Wend. (N. Y.) 47, 22 Am. Dec. 563; Matter of Murphy, 144 N. Y. 557, 39 N. E. 691; Perry v. Rhodes, 6 N. C. 140; Moore v. Smith, 9 Watts (Pa.) 403; Yost's Estate, 134 Pa. St. 426, 19 Atl. 692; Chestnut v. Strong, 1 Hill Eq. (S. C.) 123; Bunch v. Hurst, 3 Desaus. (S. C.) 273, 286, 5 Am. Dec. 551. 35 Williams v. Williams, 73 Cal. 99, 14 Pac. 394; Bushnel v. Carpenter, 28 Hun (N. Y.) 19; s. c. 92 N. Y. 270; Paterson v. Ellis, 11 Wend. (N. Y.) 259; In re Mahon, 98 N. Y. 372. 72. See, also, Hall v. David, 67 Ga. See 882-885. immediately upon the death of the testator, unless an intention to the contrary be clearly manifested in the will.86 Legacies payable at a future time, certain to arrive, are deemed vested when there is a person in being at the date of the testator's death capable of taking when the time arrives, notwithstanding that his interest is liable to be defeated by his own death, or to be diminished by future births.87 § 995. Effect of Intermediate Gift of Income of Principal Which Is to Pass to Beneficiary at a Certain Age. Although by the use of the word "when," or by the peculiar phraseology of the will, it might be inferred that the vesting of the title was intended to be made conditional upon the beneficiary living to the specified time, yet if the testator directs the interest or income of the legacy to be applied for the benefit of the legatee, it will overcome this presumption, and the principal will be deemed to have vested.38 The reason of this rule seems 36 Hutcheon v. Mannington, 1 Ves. Jun. 366; Miller v. Colt, 32 N. J. Eq. 6; s. c., 33 N. J. Eq. 362; Joseph v. Utitz, 34 N. J. Eq. 1; Scott v. West, 63 Wis. 529, 24 N. W. 161, 25 N. W. 18. As to members of a class, see § 880. 37 McArthur v. Scott, 113 U. S. 340, 379, 28 L. Ed. 1015, 5 Sup. Ct. 652; Doe v. Considine, 6 Wall. (U. S.) 458, 476, 18 L. Ed. 869; Blanchard v. Blanchard, 1 Allen (83 Mass.) 223; Moore v. Lyons, 25 Wend. (N. Y.) 119, 144; Scott v. West, 63 Wis. 529, 24 N. W. 161, 25 N. W. 18. 38 Elton v. Elton, 3 Atk. 504; II Com. on Wills-37 Stapleton v. Charles, 2 Vern. 673; Walcott v. Hall, 2 Bro. C. C. 305; Hanson v. Graham, 6 Ves. Jun. 239; Lane v. Goudge, 9 Ves. Jun. 225; Knight v. Cameron, 14 Ves. Jun. 389; In re Hart's Trusts, 3 De Gex & J. 195; Stuart v. Wrey, L. R. 30 Ch. Div. 507; Scoteny v. Lomer, L. R. 31 Ch. Div. 380, 386; Dale v. White, 33 Conn. 294; Newbury v. Hinman, 49 Conn. 130; Knowlton v. Sanderson, 141 Mass. 323, 6 N. E. 228; Toms v. Williams, 41 Mich. 552, 565, 2 N. W. 814; Robinson's Estate, 13 Phila. (Pa.) 299; Pleasanton's Appeal, 99 Pa. St. 362; Rogers v. Rogers, 11 R. I. 38; Sammis v. Sammis, 14 to be that, inasmuch as interest is a payment of money in consideration of the forbearance of a creditor to demand the payment of a principal sum to which he has a right, or title, the direction that the interest be paid the beneficiary is an indication by the testator that he intended to confer upon the legatee an absolute title in the principal, yet at the same time to purchase his forbearance to demand immediate payment thereof, which otherwise he would be entitled to do. Accordingly an allowance for maintenance of a sum less than the interest, or a discretion given to trustees to pay for the legatee's support so much of the income as they may think fit, does not effect a vesting of the principal.39 Wherever the gift of interest or maintenance is dis-. tinct, and the direction is to pay or transfer the principal sum at the specified time upon the condition named, the legacy is contingent.10 But the effect of a direction that the interim income be paid to the beneficiary is not varied R. I. 123; Weatherhead v. Stoddard, 58 Vt. 623, 5 Atl. 517. See, also, In re Lapham's Will, 37 Hun (N. Y.) 15. Where power was given to trustees in their discretion to devote the whole principal to the use of a legatee, to whom the interest thereon had been left for life, with remainder over to another, and the first beneficiary died during the life of the testator, the remainderman took upon the death of the testator, unaffected by the power given the trustees. Sauter V. Muller, 4 Demarest (N. Y.) 389. Under the statutes of Massachusetts and Louisiana, where an annuity, or the interest, use, rent, or income of property, real or personal, is given by will to a person or in trust for him for life, or until the happening of a contingent event, he is entitled to the enjoyment thereof from and after the death of the testator, unless otherwise provided in the will.Mass. Pub. Stats., (1882) ch. 136, § 24; La. Rev. Code, (1875) § 1631. 39 Barker v. Barker, L. R. 16 Ch. Div. 44, distinguishing Fox v. Fox, L. R. 19 Eq. 286. See, also, Fonereau v. Fonereau, 3 Atk. 645; Leake v. Robinson, 2 Mer. 363; In re Grimshaw's Trusts, L. R. 11 Ch. Div. 406. 40 Pleasanton's Appeal, 99 Pa. St. 362. |