Opinion
(December Term, 1831.)
1. Where a testator devised personal estate to a child, "to her and her heirs forever," and added, "It is my will and desire that if my said daughter lives to arrive to the age of 18 years, for her to receive her said legacy, and take possession of it; and if she should die without a lawful heir begotten of her body, then the said property to revert back, and be equally divided," etc., it was held that the words "receive and take possession" were equivalent to "shall then be paid," and that the legatee took a vested and (the limitation over being too remote) an absolute interest.
2. Where the time is not annexed to the legacy, but to the payment of it, the legatee takes a vested interest.
THE bill, which was filed in NASH, in 1831, set forth the following clause of the will of David Pridgeon:
No counsel for plaintiffs.
Badger for defendants.
"I give and bequeath to my daughter Polly Harriet Pridgeon one tract of land, etc.; also one negro boy, etc.; also $600 in cash, to her and her heirs forever. It is my will and desire that if my said daughter Polly Harriet Pridgeon lives to arrive at the age of 18 years, for her to receive her said legacy that I have left to her, and take possession of it; and if she should die without a lawful heir begotten of her body, then the said property to revert back, and be equally divided between my two sons, Hardy and Abijah Pridgeon, and my daughter Cloe Atkinson."
Polly Harriet Pridgeon died under the age of 18, unmarried and without issue, and the administration of her estate was committed to the defendant Hardy.
The plaintiffs were her next of kin, and sought distribution of her personal estate.
The case made by the bill was admitted in the answer.
I think the daughter, Polly Harriet, took a vested (99) interest. The gift is by distinct words, importing an immediate bequest. It seems to me that the subsequent clause is confined to the payment or personal possession of property, and so falls within the common rule. The first part certainly gives a present interest. Then come the words, "my will is, if my said daughter arrive to the age of 18 years, for her to receive her said legacy that I have left to her, and take possession of it." "Receive and take possession" are equivalent to "shall then be paid." But it is said that if is a word of contingency, and by annexing it to the period of payment upon an uncertain event, namely, her living to a certain age, the happening of that event becomes of the essence of the bequest; and as the legatee died under that age, the legacy is never to be paid, or, in other words, never vested. There are cases in which upon the plain intention of the will the general rule before mentioned must yield, if it appear upon the whole will that it was intended the legacy should be contingent, and not merely the payment postponed. Such was the case of Mackell v. Winter, 3 Ves., 236, 536. But that was upon the effect of the ulterior limitation over of the whole residue, upon the death of the three grandchildren under age, which forced an implication of cross-remainders between those grandchildren, or rather that the fund was not to be divided, but kept for those children, or that one who did arrive at full age. But why should we give such an effect to the terms by which the period of payment is designated here? If, though generally denoting a condition, does not necessarily do so, if apparently not used in that sense. Here it is not referable to the interest in the legacy, but the enjoyment of it, and by a distinct sentence. Naturally, therefore, the case falls within the general rule. What is there to show the testator had a different meaning from that upon which the rule is founded? It is plain the testator did not mean to die intestate as to this legacy. Upon the death of the daughter without (100) heir of her body, it is given over. And the contingency on which it is to go over is not confined to her dying without issue under 18, but to her so dying at any time, whether under or over that age. Nor can it be supposed that he meant it to fall within the residue upon any event but its abating by the death of all the takers, as well the remaindermen as the daughter. Yet if she had died under 18, according to the other construction, and had left a child, neither the first nor second takers could have it; the first, because she did not attain the requisite age; the second, because the daughter had left issue. And then it would either go to the next of kin or to the residuary legatees. We may safely say the testator could not mean that; and if not, it seems to follow that the legacy vested in the daughter, because that is the only construction which can prevent the other. The testator might well postpone the payment or possession to 18, and then direct it, because that is a usual age of marriage in this country. But when he gives over the property expressly upon her dying without issue, he could not mean that if she had issue at any time she should not have it in her power to provide for it. This is the prevailing circumstance which governs me. It has controlled the construction of many wills. But there is another which has no little influence. The legacy is a provision for an infant daughter, for whose support and education no other provision is made; and unless this legacy vested so as to give her the profits (there being no intermediate disposition of it to another), she would be wholly destitute. Did the father intend that? Besides, there is another reason, which is certainly slight and verbal, yet helps on to the same conclusion. The testator uses the word revert back, when he creates the remainder, which presupposes a vested title to have been in the daughter.
Upon the whole, I conclude that the daughter took a vested interest, subject to be divested upon the contingency of her death without issue; in which case there is a limitation over. But as the contingency is too remote, her interest remains absolute.
PER CURIAM. Declare, that Polly Harriet Pridgeon took, (101) under the will in the pleadings mentioned, a vested and transmissible interest in the legacy bequeathed to her therein, determinable upon the contingency of her dying without issue; and that the said contingency being too remote, the said Polly Harriet took an absolute interest therein, and reserve the cause for further directions.