41

by the mere addition of the words "for his maintenance," where there is no reason to suppose that the testator intended less than the whole income to be so paid.11 A gift of the interest operates to vest the legacy as well when it is to a class as when it is to an individual, provided that each member of the class has a distinct title to the interest of his own share,+2 but not where all the members of a class enjoy the interest as a common fund for their maintenance until they reach a specified age.48

The inference from a gift of interest may be entirely overthrown by an expression of a contrary intention in the will," or by the payment of the interest itself being clearly made to depend upon the same contingency as the principal.45 Where the interest given is not to the legatee himself, but is expressly disposed of to another, his title is in the nature of a remainder, and will vest immediately.46

41 Isaacson v. Webster, L. R. 16 Ch. Div. 47; Hoath v. Hoath, 2 Bro. C. C. 3; Field v. Burbridge, 19 Ky. L. 1131, 42 S. W. 912; Plaenker v. Smith, 95 Md. 389, 52 Atl. 606; Safe Deposit etc. Co. v. Wood, 201 Pa. St. 420, 50 Atl. 920.

A gift of the interest operates to vest the legacy as well when it is to a class as when it is to an individual, provided that each member of the class has a distinct title to the interest of his own share. In re Grove's Trusts, 3 Giff. 575.

42 In re Grove's Trusts, 3 Giff. 575.

43 Loyd v. Loyd, 3 Kay & J. 20;

Vorley v. Richardson, 8 De Gex, M. & G. 126; In re Hunter's Trusts, L. R. 1 Eq. 295, 298; Bickford v. Chalker, 2 Drew. 327; Sanders v. Miller, 25 Beav. 156.

44 In re Bulley's Estate, 11 Jur. N. S. 847.

45 In re Thruston, 17 Sim. 21; Morgan v. Morgan, 4 De Gex & S. 164; Chance v. Chance, 16 Beav. 572; Knight v. Knight, 2 Sim. & St. 490.

46 Lane v. Goudge, 7 Ves. Jun. 225. See, also, Boraston's Case, 3 Coke 16a.

Contra: A dictum in Laxton v. Eedle, 19 Beav. 321, 323.

§ 996. Where Payment Is Postponed for the Convenience of the Estate.

With respect to legacies payable out of real estate, the rule is that if the time of payment be postponed with reference to the circumstances or condition of the legatee, as for example, until he attain a specified age or until he should marry, the vesting of the title is contingent, and the legacy will lapse if the beneficiary die before the time of payment arrives, notwithstanding that interest be given in the interim.18 But where the payment is postponed with respect to the convenience of the person charged with the legacy or on account of the circumstances of the testator's estate, and not on account of the age, condition, or circumstances of the legatee, the title will vest, and the legacy must be paid to the executor or administrator of the legatee if he be dead at the time of payment.49

The general rule is that if, from the whole will, it appears that payment of any devise or legacy was merely for the convenience of the estate or the one charged with such payment, the beneficiary takes a vested interest at

47 Phipps v. Mulgrave, 3 Ves. Jun. 613; Gawler v. Standerwicke, 2 Cox 15; Harrison v. Naylor, 3 Bro. C. C. 108.

48 Parker v. Hodgson, 30 L. J. Ch. 590; Pearce v. Loman, 3 Ves. Jun. 135.

49 Smith v. Palmer, 7 Hare 225; Bromley v. Wright, 7 Hare 334; Homer v. Gould, 1 Sim. N. S. 541; Watson v. Watson, 11 Sim. 73; Brown v. Wooler, 2 You. & C. Ch. 134; Dawson v. Killet, 1 Bro. C. C. 119, 124; Medlicott v. Bowes, 1 Ves. Sen. 207; Hallifax v. Wilson,

16 Ves. Jun. 171; Blamire v. Geldart, 16 Ves. Jun. 314; Marshall v. Bentley, 1 Jur. N. S. 786; Baynes v. Prevost, 8 Jur. 578; In re Wilson, 14 Jur. 263; Strother v. Dutton, 1 De Gex & J. 675; Salmon v. Green, 11 Beav. 453; In re Bright's Trust, 21 Beav. 67; McLachlan v. Taitt, 28 Beav. 407; Shrimpton v. Shrimpton, 31 Beav. 425.

Contra: Beck v. Burn, 7 Beav. 492; Chevaux v. Aislabie, 13 Sim. 71; Davidson v. Proctor, 19 L. J. Ch. 395.

the death of the testator.50 Nor is the vesting deferred where payment is postponed until the testator's debts are satisfied,51 or an outstanding security gotten in,52 or until certain property be sold,53 or until money directed by the will to be laid out in the purchase of land is so laid out.54 Likewise a provision directing that none of the devises or legacies shall be executed or take effect until a certain hall shall be completely finished and paid for out of the estate, was considered not to suspend the vesting, but only the payment of the legacies and devises.55

§ 997. Divesting of Vested Estates: Interest Contingent Upon Surviving Termination of Preceding Estate.

There are cases in which conditional devises or legacies may, after having vested, be liable to open up and let in other beneficiaries, 56 or even be divested entirely. This occurs when the contingency upon which they are limited

50 McArthur v. Scott, 113 U. S. 340, 378, 28 L. Ed. 1015, 5 Sup. Ct. 652; Harvard College v. Balch, 171 Ill. 275, 49 N. E. 543; McLaughlin v. Penney, 65 Kan. 523, 70 Pac. 341; Dohn's Exr. v. Dohn, 110 Ky. 884, 62 S. W. 1033, 64 S. W. 352; Bowker v. Bowker, 9 Cush. (63 Mass.) 519; Cook v. McDowell, 52 N. J. Eq. 351, 30 Atl. 24; Matter of Embree, 154 N. Y. 778, 49 N. E. 1096; Matter of Crane, 164 N. Y. 71, 58 N. E. 47; Engle's Estate, 167 Pa. St. 463, 31 Atl. 681; Scott v. West, 63 Wis. 529, 565, 24 N. W. 161, 25 N. W. 18; Baker v. McLeod's Estate, 79 Wis. 534, 541, 48 N. W. 657.

51 Barnardiston v. Carter, 1 P. Wms. 505, 509; Bagshaw v. Spen

cer, 1 Ves. Sen. 142; Small v. Wing, 5 B. P. C. Toml. 66; Ducker v. Burnham, 146 Ill. 9, 10, 37 Am. St. Rep. 135, 34 N. E. 558.

52 Wood v. Penoyre, 13 Ves. Jun. 325.

53 Stuart v. Bruere, 6 Ves. Jun. 529n; Tily v. Smith, 1 Colles 434. 54 In re Dodgson's Trust, 1 Drew. 440; Lucas v. Carline, 2 Beav. 367; Whiting v. Force, 2 Beav. 571; Hutcheon v. Mannington, 4 Bro. C. C. 491; Sitwell v. Bernard, 6 Ves. Jun. 520, 522; Entwistle v. Markland, 6 Ves. Jun. 528n.

55 Jones v. Habersham, 107 U. S. 174, 27 L. Ed. 401, 2 Sup. Ct. 336. 56 See §§ 887-890.

is in the nature of a condition subsequent, as where a clause is added introducing a condition upon the happening of which the estate will be divested. For example, where an estate is devised to A for life with remainder to his children, provided that if any child dies in the lifetime of A his share shall go to the surviving children, the share of each child will vest at the date of the death of the testator but subject to be divested by the death of such child during the life of A.57

A devise by a testator in trust for the benefit of his son for life, with remainder over for the benefit of the children of the son who may survive him, but in case the son shall die without surviving issue then the remainder over to named persons discharged of the trust, passes to the last mentioned beneficiaries a vested interest subject to be divested on the birth of issue to the life tenant.58 A devise to one "during his natural life and at his death to his son B if living," gives to B a vested remainder which will be divested upon his dying before the termination of the life estate.59

57 Northern Trust Co. v. Wheaton, 249 Ill. 606, 34 L. R. A. (N. S.) 1150, 94 N. E. 980; Blanchard v. Blanchard, 1 Allen (83 Mass.) 223; Vandewalker v. Rollins, 63 N. H. 460, 3 Atl. 625; Van Houten v. Hall, 71 N. J. Eq. 626, 64 Atl. 460.

58 Dana v. Sanborn, 70 N. H. 152, 46 Atl. 1053.

As to survivorship generally, see §§ 891-897.

As to English and American decisions, where devise is to one with alternate gift should first

named devisee "die without issue," see §§ 866, 867.

As to devise of life estate to one, with remainder over should first taker "die without issue," see § 970.

As to the creation by implica tion of estates tail by gift over if the devisee "die without issue," see §§ 947-951.

As to the rule in Shelley's Case, where the remainder is vested or contingent, see § 907.

59 McDonald v. Taylor, 107 Ga. 43, 32 S. E. 879.

When an estate has once vested, it can not be divested by reason of conditions unless all the events which are to precede the vesting of the substituted devises take place. A contingency to which the effect of a condition subsequent is given does not prevent the estate from vesting, but merely makes it subject to be divested on the happening of the contingency. In such cases stress is generally laid upon the fact that the words of contingency import a condition that the remaindermen shall be