Post v. Herbert's Executors. to postpone the payment of these legacies, solely for the convenience of the estate, and to let in the interest deposited in the son-in-law, is unmistakably shown. It is seldom, indeed, that among the cases which have been adjudged, such intent has been so manifest. A large number of cases which exemplify this subject will be found in the ordinary text writers. 1 Roper on Leg. 572; Hawkins on Wills 232; 1 Jarman on Wills 763. The doctrine has also been adopted and settled by several decisions in the courts of this state. Fanly v. Klive, 2 Penn. 754; Wintermute v. Snyder, 2 Green's Ch. 489; Vandyke's Adm'r v. Vanderpool's Adm'r, 1 McCarter 198; Howell's Ex'rs v. Green, 2 Vroom 570; Thomas' Ex'r v. Anderson's Adm'r, 6 C. E. Green 22; Montgomery's Ex'r v. Beatty's Adm'r, Id. 324. My conclusion, therefore, on this point is, that by the paragraph of the will above quoted, an intent is shown to defer the time of the payment of these legacies to answer an obvious purpose, which was to vest an intermediate interest in the father of the legatees, and that the legal consequence of such an indication must be, to convert the direction to divide the moneys at a future time, into an immediate gift, that vested on the death of the testator. Nor do I find any difficulty in the argument that in the present case, the event on the happening of which the payment is made to depend, being uncertain, the legacy itself must be considered contingent. This effect is produced only when the time, when the contingent event, on the happening of which the payment is to be made, is to take place, is uncertain. In such case, it may well be presumed that the testator did not intend to make any gift, unless the event should happen and the time of payment should be thus fixed. Thus, if here the legacies had been made payable on the marriage, instead of at the majority of the youngest child, the time of payment as well as the event on which it was to be made, would have been uncertain, and the legacies would not have vested antecedently to the occurrence of the marriage. But where a legacy is VOL. XII. 2 M Post v. Herbert's Executors. given to A, payable to him at twenty-one, or when he arrives at twenty-one, there is no uncertainty as to the time when the money is to be paid, and the consequence is, if we consider such a case on the assumption that the legatee need not survive to the prescribed age as a condition precedent to his right to claim the money, it will be manifest that all uncertainty is removed from the affair. It is upon this theory that the cases have been founded. Mr. Hawkins, in his treatise on wills, page 225, says: "A bequest to A, at twenty-one, and a bequest to A, payable at twenty-one, do not much differ in expression; yet one is a vested, the other a contingent gift." The meaning of this is, that where the gift is immediate, the interest vests at once; that is, the survival to the designated age is not a condition on which the legacy is founded; and this being so, the reference to the majority of the legatee operates as a mere notation of the time when the money is demandable. In the case of Atkins v. Hiccocks, 1 Atk. 500, Lord Hardwicke evidently points to this distinction. The bequest in that case was to Elizabeth Hiccocks of £200, to be paid at the time of her marriage, or within three months afterwards, provided she married with the approbation of, &c. The legatee died unmarried, and the question was whether she took a vested interest, transmissible to her administrator, and the answer was in the negative, the Lord Chancellor saying: “I am of opinion this was not a vested legacy; in the common cases of legacies to be paid at the age of twenty-one, there is a certain time fixed, not to the thing itself, but to the execu tion of it, and the time being so fixed, must necessarily come; but when the time annexed to the payment is merely eventual, and may or may not come, and the person dies before the contingency happens, I can find no instance in this court where it has been held that the legacy, at all events, should be paid." And further on he says, that it has always been held, with regard to a legacy "given to be paid at twenty-one," that such a limitation of payment was debitum in presenti, solvendum in futuro. Boraston's case, 3 Rep. 19, is also a leading authority on this subject. In it the devise was to a man and Post v. Herbert's Executors. his wife for eight years, and after that term the lands were to remain to the executors of the devisor until such time as Hugh Boraston should accomplish his full age of twenty-one; the mesne profits to be employed by the executors towards the performance of the testator's will; and when the legatee should attain twenty-one, then that he should enjoy the estate to him and his heirs. Hugh died before twenty-one, and the Court of King's Bench decided that the remainder was vested in him on the death of the devisor, with a postponement of the possession until he completed the age of twenty-one. Lane v. Goudge, 9 Ves. 226; Taylor v. Biddall, 2 Mod. 289, and Manfield v. Dugard, 1 Eq. Cas. Abridg. 195, stand on the same footing. It is plain from these cases and from a host of others that might be cited, that a direction to divide a fund on the coming of age of the legatees, or of any of them, will not prevent the legacy from being considered to be vested on the death of the testator, if the intent to effect such purpose is otherwise shown. With respect to the further position that this bequest is to the children as a class, and not as individuals, and that, consequently, a joint tenancy was created, it is sufficient to point to the fact that the division is directed to be made between these legatees, "share and share alike." These are clear words of severance, denoting plurality of interests among the objects of the gift, and, therefore, the rule invoked is excluded. The authorities are clear upon this point. Hawkins on Wills 112; Vreeland v. Van Ryper, Westcott v. Cady, 5 Johns. Ch. 335; 2 C. E. Green 134. The decree appealed from should be affirmed, with costs. Decree unanimously affirmed. Midmer v. Midmer's Executors. MIDMER and others, appellants, and MIDMER'S EXECUTORS, respondents. 1. The bill in this case sought to establish a trust by virtue of an express agreement. The evidence was of a purely resulting trust, in an entirely different person, originating almost two years earlier than that stated in the bill. Held, that the variance between the allegata and probata was fatal to relief. 2. Held, that an application to amend the pleadings was properly refused below; the evidence failing to convince the judgment of the court that the complainants were entitled to any relief. The case in chancery is reported in 11 C. E. Green 300. Mr. Collins, for appellants. Mr. T. N. McCarter, for respondents. The opinion of the court was delivered by On the 12th day of July, 1873, the appellants filed their bill to enforce an alleged trust in certain land purchased by and conveyed to the respondents' testator, John H. Midmer, August 8th, 1853, and of which he died seized, September 17th, 1872. Their case, as disclosed by the bill, is that before the purchase of the land in question, the said testator, being the brother of the appellants, Henry Midmer and Eliza Anderson, and of William Midmer, had in his possession money which had been realized from the sale of property owned in common, in equal shares, by the said three brothers and sister, and that before the said purchase it was agreed by them, among themselves, that the said John should purchase said land with the said money; should take the title thereto in his own name, and hold it as trustee for himself and his said brothers and sister in equal shares; and that, in pursuance of said agreement, he did so purchase and pay for the Midmer v. Midmer's Executors. said land, taking the title in his own name, and holding the same up to the time of his death, as trustee for his said brothers and sister. In support of the alleged trust, the appellants claim that they have established the following facts: That the consideration which passed for said land was certain stock in the Third Avenue Railroad Company; that this stock was derived from the sale of a house and lot in the city of New York; that the said house and lot were purchased by the said John H. Midmer, with money given him by his mother to purchase the same for her, and in her name; and that the said John, without the knowledge and against the instructions of his mother, took and held the title to the said house and lot in his own. It has been argued before us with much earnestness and ingenuity, that whether the money paid for the house and lot belongs to the mother, or to the estate of her deceased husband, is immaterial, as the four Midmer children were the only heirs-at-law and next of kin of each parent; that at the death of the mother, in 1852, a trust resulted in favor of the four children in the house and lot, afterwards in the stock, and finally in the land in question. name. It is further insisted that the case made by the appellants, on the evidence, substantially meets and satisfies the allegations of their bill. The bill proceeds upon the ground of a trust arising, not by mere operation of law, but by virtue of an express agreement between the parties. This trust, so far as the bill discloses, had its inception at the date of the purchase of the land in question by John H. Midmer. There is not the slightest intimation in the bill of any other trust in land. The very groundwork of the appellants' case, upon the evidence, is a purely resulting trust in the mother of the parties to the alleged agreement, originating almost two years earlier than that stated in the bill. It is manifest that, upon such a case, assuming it to be established, the appellants can have no relief upon the pleadings as they stand. Such was the conclusion of the Vice-Chancellor. |