Wagner, Judge,
delivered the opinion of the court.
This is a suit brought by the trustees, under the will of George Collier, deceased, against the widow, the children of the deceased, and certain other persons claiming an interest in the estate. The purpose of the proceedings was to obtain from the court below, as a court of equity, proper instructions and directions for the guidance of the trustees in the construction of the will, in executing their trusts.
They allege in their bill that since the death of their testator, two of his children, who are mentioned in the will as beneficiaries in certain contingencies, have deceased — one of them Henry Collier, an infant; the other George Collier, Jr., an adult, whose last will has been admitted to probate and administration granted thereon in St. Louis county ; — that these events, not being among the contingencies expressly provided for in the will of their testator, have given rise to doubts respecting the construction of the will, which the trustees are unwilling to decide without the sanction of the coirrt.
The main question to be decided is whether the devisees George and Henry, took vested and transmissible estates under the will, or merely contingent interests, dependent upon certain conditions. The Circuit Court construed their interests to be contingent, and rendered a decree by which their representatives, and those claiming under them, were debarred of all right or title to any share of the estate derived from them. It is this decree which is now before us for revision.
The testator, Collier, after making several specific bequests in the prior parts of his will, gives, devises and bequeaths, in the 17th clause, all the rest, residue and remainder of his estate, not otherwise disposed of, whether real, personal or mixed, of whatever kind and wheresoever situated, unto his [319] wife Sarah A., his nephew Edward Bredell, and his friend Alfred Chadwick, as trustees, to have and to hold the same unto them, the said Sarah A., Edward and Alfred, as joint tenants, and not as tenants in common, and unto the survivors or survivor of them, and to the heirs, executors, administrators and assigns of such survivor forever, as trustees in trust for the uses and purposes in the said 17th clause expressed. He then gives specific and circumstantial directions about the management and disposition of his estate, and the maintenance, support and education of his children. Eor his two eldest children, George and Mary, he had already provided by an advancement. In addition to these he left the following children, which were all named : Margaret D., John P., William B., Maurice Dwight, Thomas F. and Henry Collier. He then continues : “And it is my will and desire that as and whenever any of my children (prior to the first division or partition that shall be made as hereinafter provided) shall become of age, or become married or settled in life, my said trustees shall advance to any such of them, any such amounts of money or property as in their judgment and discretion shall be right and proper, keeping correct accounts thereof. And when my said son Dwight shall attain the age of twenty-one years, I wish and require my said executors and trustees immediately to settle up my estate, and divide the same out among my said children, as hereinafter mentioned, as far as it may be practicable. And if division thereof cannot, without detriment and loss, be then at once effected of the entire estate, I desire and direct that it be made so far as it can be accomplished; and then, so soon thereafter as practicable, I require a further division to be made, and so on from time to time until the whole estate shall be settled and partitioned among my children. And whenever any division or partition shall be made as aforesaid, I require that my said executors and trustees shall report the same to the Probate Court of said county of St. Louis for its approval, and if the same be approved of by said court then the same shall be binding and conclusive. And so of any and all di[320] visions that my said executors and trustees shall make as aforesaid. In making partition as aforesaid, I wish and di- ' rect that each and all my said children shall receive equal portions or shares, as my affection and parental regard for them all know no distinction. But if, from providential visitation or unforeseen casualty, or their own bad conduct— none of which contingencies or misfortunes I hope may ever intervene — my said trustees shall think it right and proper and safest and best, under all the circumstances, to make any difference or distinction among my said children, or any of them, in making any of the divisions or partitions as above provided for, they are hereby vested with full power and authority to do so, as fully and to all intents and purposes as I myself could do if living at the time; such discrimination always, however, to be subject to the approval of the said Probate Court, as aforesaid. But if all my children shall be worthy, no distinction or difference shall be made among them merely because one or some of them may be deemed by my said trustees more worthy than the others of them. The shares or portions of my estáte which shall be thus set apart to my children, shall be held by them in their own several rights, under the full and perfect legal title — to them and to their heirs, executors, administrators and assigns, forever.” Provision is then made in regard to advances that may be made from time to time, and requiring compound interest to be paid on subsequent portions, so as to make them equal to those who had received prior shares.
It is argued that, by the express terms of the will, the whole legal title to the estate vested in the trustees at the death of the testator, and that when the contingency happened upon which the division or partition was to be made— Dwight attaining the age of twenty-one — the children would receive their portions by appointment, under the power contained in the will, and not directly by the will itself. Our statute, which provides that the intention of the testator must prevail in the construction of a will, is simply declaratory of the rules of law, as they have existed for an almost [321] indefinite period. The first thing to be ascertained is what was meant by the testator in framing his will; and if his meaning and intention are not violative of any rules of law, they must be carried out and executed. As wills are generally dissimilar, and one can hardly be found precisely like another, cases are rarely to be met with which are directly apposite, so as to be controlling authority in any new case which may arise. But there are certain rules of law which have grown up and become firmly fixed in the interpretation of wills, which no court is at liberty to disregard, unless the language of the testator, in making the devise, plainly requires it; and one of these rules is, that all estates shall be considered vested rather than contingent. The law is said to favor the vesting of estates, the effect of which principle seems to be, that property which is the subject of any disposition, whether testamentary or otherwise, will belong to the object of the gift immediately on the instrument taking effect, or so soon afterwards as such object comes into existence, or the terms thereof will permit. As therefore a will takes effect at the death of the testator, it follows that any devise or bequest in favor of a person in esse simply (without any intimation of a desire to suspend or postpone its operation) confers an immediately vested interest—1 Jarm. on Wills, 726, and note by Perk.; 2 Eearne on Rem. 73. Where words of futurity are introduced into the gift, the question arises whether the expressions are inserted for the purpose of protracting the vesting, or point merely to the deferred possession or enjoyment — Jarm. ib. The cases are very numerous bearing upon this subject, and a few of them will be noticed. In Boraston’s case, 3 Coke, 19, a testator devised land to A. and B. for eight years, and after the said term the land to remain to his executors, for the performance of his will, till such time as H. should accomplish his age of twenty-one years, and when the said H. should come to the age of twenty-one, then to him, his heirs and assigns forever. H. died under twenty-one. It was contended that the remainder was not to vest in him unless he attained the pre[322] scribed age ; but the court held it to be vested immediately ; the case being, it was said, nothing else in effect than a devise to the executors, till H. attained the age of twenty-one, remainder to H. in fee; and that the adverbs of time, token, &c., do not make anything necessary to precede the settling (that is, the vesting of the remainder), but merely expressed the time when it should take effect.
In Goodtitle v. Whitby, 1 Bur. 228, the testator devised all his messuages, lauds, &c., to two trustees and the survivor of them, and the heirs of such survivor (whom he also made executors), in trust that they and the survivor of them, his heirs and assigns, should lay out the rents and profits for the maintenance, education, bringing up and putting out his two nephews; and when they should attain twenty-one, to be to them and their heirs equally; — held, an immediate gift to the two nephews, and vested in them immediately, with a trust to be executed for their benefit during their minority.
In Doe v. Underdown, Willis, 293, it is said a devise of lands to A. till B. attain the age of twenty-one, and then to B. in fee, gives B. a vested interest descendible to his heirs if he die before twenty-one.
In the case of Doe v. Lea, 3 Term R. 41, the testator devised the premises in question to certain persons in trust until M. L. should attain the age of twenty-four, on condition that they should, out of the rents and profits, during all that time, keep the buildings in repair. He subsequently devised the same premises to the said M. L. upon and as soon as he should attain the age of twenty-four, and directed the trustees to surrender the premises accordingly. M. L. died under twenty-four, and it was held by the King’s Bench unanimously—Lord Kenyon, C. J., delivering the opinion— t hat M. L. took a vested and descendible interest.
In the recent case of Doe d. Cadogan v. Ewart, 7 Adol. & El. 636, the testator devised his real estate to trustees, upon trust for his wife during widowhood ; and after her decease or marriage again, upon trust to apply the rents towards the maintenance of his daughter until she should attain the age [323] of 25years; and from and after her attaining that age, then upon trust for his said daughter, her heirs and assigns, forever ; but in case his said daughter should depart this life without issue, then the testator devised the said real estate over. The daughter, after the decease of the widow, and before she attained the age of twenty-five years, suffered a common recovery; and it was held that such recovery was effectual to acquire the equitable fee simple, she having a vested estate tail in equity at the time.
Jarman seems to lay down the true doctrine, and observes that the construction which reads words that are seemingly creative of a future interest, as referring merely to the futurity of possession occasioned by the carving out of a prior interest, and as pointing to the determination of that interest, and not as designed to postpone the vesting, has obtained in some instances where the terms in which the posterior gift is framed import contingency, and would, unconnected with and unexplained by the prior gift, clearly postpone the vesting. Thus, where a testator devises lands to trustees until A. shall attain the age of twenty-one years, and if, or when he shall attain that age, then to him in fee, this is construed as conferring on A. a vested estate in fee simple subject to the prior chattel-interest given to the trustees, and consequently on A.’s death, under the prescribed age, the property descends to his heir at law; though it is quite clear that a devise to A., if, or when he shall attain the age of twenty-one years, standing isolated and detached from the context, would confer a contingent interest only.
This being a mixed gift, the rules of law applicable to a devise of realty will apply, though, did it exclusively concern personalty, there would be no essential difference, as a few cases will readily demonstrate. Thus in Clancey v. Dickey, 2 Hawks, 514, the father of a minor appointed his wife executrix of his will, which contained the following clauses : “ It is my will and desire that my negroes shall be kept together until my children arrive at full age or marry, and then to be divided between my beloved wife and children, share and share [324] alike equally;” and, “ It is my will and desire that whenever any of my children arrives at full age or marries, that his or her share of my estate be delivered to him or her immediately.” In passing upon this, the court used the following language : “ Taking the whole will together, and considering that the only legatees in it were his wife and children, who were also residuary legatees, it admits of the same construction as if he had left the negroes to be kept together by his wife, for the benefit of the family, until one of his children should arrive at age or be married, when they were to be divided between them and his wife; thus disannexing the time of division from the substance of the gift.”
In Perry v. Rhodes, 2 Murphy, 140, the question arose upon the construction of the will of Hardy Witherington. He bequeathed all his movable estate, excepting his negroes, to his wife, till his youngest daughter arrived at the age of twenty-one years, and then to be equally divided among his wife and daughters. And as to his negroes, he directed them to be hired out annually till his youngest daughter attained the age of twenty-one, and that his wife should have the money arising from their hire till that time, when they and their increase were to be equally divided among his wife and daughters. One of the daughters died before the youngest of them attained the age of twenty-one years. Held, that her representative was entitled to a distributive share of the negroes, for the right vested immediately, and the enjoyment thereof only was postponed.
In Everett v. Mount, 22 Georgia, 323, the will contained this clause: “ I desire that the balance of my property shall remain together until my youngest child comes of age, each to be clothed and educated out of my estate equal with my other children, and my estate to pay them $1,000 as they come of age; and when my youngest child comes of age, I wish an equal division of the balance of my property.” One of the daughters died under age. It was decided that the legacy vested on the death of the testator.
But it is said that no interest is conferred upon the chil[325] dren except in the directions to the trustees. We think otherwise. There are directions to pay, to transfer, divide and partition, which import a gift, unless they are restricted by some inconsistent limitation or condition. The irresistible inference is that a gift was intended in the constitution of the trust, and that the gift to the trustees was for the benefit of the children only.
Of this description was the case of Felton v. Sawyer, 41 N. H. 202. In this case a testator gave a trustee, for his daughter, by name, all his estate, to sell, reinvest, and secure, as he should deem expedient; and he was authorized in his discretion to pay to the daughter before she attained twenty-one years of age not exceeding six per cent.; before she became twenty-five, not more than one-third; before thirty, not more than two-thirds; and on or before she became thirty-five, he was to pay over the whole of the estate. It was contended there that there was no gift to the daughter except in the direction to pay, and that as the daughter died before the bequest vested, the estate lapsed for the benefit of the heirs at law or next of kin. The court say the whole property was given to the daughter, though with the intervention of a trustee, and decide that a gift to a trustee was a gift to the cestui qui trust, and that the directions as to payment went only to the enjoyment in possession.
The postponement of the payment, division and partition in the case here seems to be more for the benefit and convenience of the estate than for any considerations personal to the heirs and devisees, and where such is the case it is clear that deferring the payment or partition does not prevent the devise or legacy from vesting—Fuller v. Winthrop, 3 Allen, 51; Harris v. Fly, 7 Paige, 421; Marsh v. Wheeler, 2 Edw. Ch. 163; 1 Jarm. 756-63.
Another consideration is, there is no devise over of the respective interests, showing any purpose in the testator that the devisees should not receive their shares at all events. The consequence of the rule that the estate did not vest, and the devisees took no immediate interest, would be, that if [326] any of the devisees died before Dwight attained the age of twenty-one, leaving children, those children would be wholly unprovided for; which we will not believe was the intention of the testator. Parents are not generally actuated by such intentions, and unless they are apparent and unmistakable, such intentions will not be ascribed to them.
The testator gives, devises and bequeaths all the rest, residue and remainder of his estate to the trustees, for the uses and purposes expressed. It is immaterial that the money is not to be paid or the property divided till a future period. It is scarcely distinguishable from a bond for the payment of money at a future date. It is debitum in presentí though solvendum in futuro.
The great error in the argument of the counsel for respondents appears to be, that the children take nothing by virtue of the will, but that they receive their distributive shares by appointment under the power conferred on the trustees. A fair and natural construction of the will rebuts this idea. The estate is devised to them till Dwight becomes of age, and then it is made the duty of the trustees to partition the same among them. The testator gives the trustees power to discriminate in the amounts and shares allotted to each of the children, if from providential visitation or unforeseen casualty, or the bad conduct of any of the children, they should see proper to do so; this power, however, always to be exercised with the approval of the Probate Court. It may be conceded that the real meaning in the mind of the testator, as to providential visitation or unforeseen casualty is at least indefinite .and vague. The words are coupled with bad conduct, and they may perhaps all be referred to the same class. This view would seem to be strengthened from the sentencé immediately following: “But if all my children shall be worthy, no distinction or difference shall be made among them merely because one or some of them may be deemed by my said trustees more worthy than the others of them.” Providential visitation and unforeseen casualty are certainly not used in their primary etymological sense. [327] Accident, casualty or bad conduct might make it highly judicious and proper that the power of discriminating should be used, not for the purpose of cutting off the share of a child entirely who had been unfortunate and indiscreet, but to vary the character or modify the disposition to be made of the property assigned to him. The action of the trustees is not a condition precedent to the vesting of the estate in the devisees, and whatever power they may have to make a difference or distinction on account of casualty or bad conduct is a discretion subsequent.
There is nothing to indicate that the testator intended to exclude a child from partition by death, for there is no such expression in his will, nor is there any devise over in view of such an event. An event has occurred — the death of two of the children — which prevents the trustees from making any distinction or difference as to them, and so far as they are concerned, there is nothing to evoke the power given. We attach no importance to the condition, that any action that the trustees might take in the premises should be approved by the Probate Court before it would be binding and conclusive. The duty imposed upon the court is wholly extrajudicial, and its sanction could impart to the proceedings no validity. Or should the court refuse to act in this extra-official manner, will it be contended that no estate vests ? If the trustees neglect or refuse to act, or abuse their trust, they are amenable to a court of equity, which will always assert its jurisdiction in such cases.
We have now disposed of really the only questions before the court, but there is another matter which has found its way into the decree, and, as the parties desire an expression of opinion on it to aid them in making a complete and final adjustment of the estate, we will proceed to examine it.
The will of George Collier, Jr., contained the following clauses: “2d. I give and bequeath to my dearly beloved wife, Harriet K. Collier, the entire usufruct of all my estate, real, personal and mixed, of every character and description, wherever situated at the time of my death, so that she may enjoy [328] the sole and entire revenue and income thereof during her life. 3d. I give to my said wife the absolute right to dispose of one-half of my said property at her decease, by testamentary disposition, as she may deem right and proper.”
Harriet K. Collier died a short time after the decease of her husband George, and the disposing part of her will is in these words: “ I give to my dear mother, Mary Kearny, the entire property of which I may die possessed, wherever situated, real, personal and mixed, of every character and description, including any and, all rights acquired by me under the will of my late husband, to enjoy the sole and entire use of the same during her life,” &c. It is now contended that the will of Harriet does not execute the power given to her by her husband, of the right to dispose of one-half of his property by testamentary disposition. The general rule in reference to the execution of powers by will is thus stated by Chancellor Kent, in his commentaries : “ In the case of wills it has been repeatedly declared, and it is now the settled rule, that in respect to the execution of a power, there must be a reference to the subject of it, or to the power itself; unless it be in a case in which the will would be inoperative without the aid of the power, and the intention to execute the power becomes clear and manifest. The intent rnust be so clear that no other reasonable intent can be imputed to the will, and if the will does not refer to a power or the subject of it, and if the words of the will may be satisfied without supposing an intention to execute the power, then unless the intent to execute the power be clearly expressed it is no execution of it”—4 Kent’s Com. 335.
Mr. Justice Story, in Blagge v. Miles, 1 Story R. 426, gives three classes which have been held to be sufficient demonstrations of an intended execution of power. “ 1st. Where there has been some reference in the will or other instrument to the power; 2d. Or a reference to the property which is the subject on which it is to be executed ; 3d. Or where the provision in the will or other instrument executed by the donee of the power would otherwise be ineffectual, or [329] a mere nullity — in other words, would have no operation, except as an execution of the power.” He further remarks that these are not all the cases, and that it was always open to inquire into the intention, under all the circumstances, while he agrees that “ the intention to execute the power must be apparent and clear, so that the transaction is not fairly susceptible of any other interpretation.”
In Maples v. Brown, 2 Sim. 327, the testator gave ¿£3,000 to trustees, for his daughter for life; remainder to such persons as she should appoint. The daughter, by her will, disposed of all her personal estate, and then gave all sums, messuages, &c., and other interests to which she was entitled under the testator’s will. The only reference that was made in the will of the daughter was in these words : “I also give, devise and bequeath unto all and every,” &c., the “interest to which I am, or shall, or may hereafter become entitled under and by virtue of the provisions and directions contained in the last will and testament of my late father.”
It was insisted there, as here, that the testatrix, from the words used, had only disposed of the property in which she had an interest; that she had a life interest only in the ¿63,-000, under her father’s will, with a power to appoint the capital, and that she had not executed the power, but given merely what she had an interest in. But the Vice-Chancellor held otherwise, as follows : “ The testatrix, in the former part of her will, disposes of all her personal estate; therefore, the words at the latter end cannot refer to what was her own, as they would be superfluous. It is therefore, on a view of the latter words as contrasted with the former ones, that I hold the will to be an execution of the power.” It is not to be denied that, according to the technical niceties formerly existing in the English Chancery courts, the testamentary disposition of Harriet K. Collier would not constitute a good execution of the power contained in the will of her husband. But the question in England has been settled conformably to the intention of the testators, by statutory enactment, and the principle furnished by the authorities above referred to [330] seems to be, that if the donee of the power intends to execute, and the method adopted'for that purpose is unexceptionable, that intention, however manifested, whether it appears by positive terms or just implication, will amount to a valid and operative execution. The second clause of the will of Harriet K. gives to her mother her entire property of every character and description, including any and all rights acquired by her under the will of her late husband. Here is a direct reference to the power, and in a manner so explicit that there can be no room left for doubt. The intention is so palpable and apparent that it would require the application of artificial, technical rules to destroy the presumption in its favor.
Our conclusion, therefore, is that the will of Harriet K. amounts to, and must be liolden a valid and operative execution of the power.
The judgment of the court below will be reversed and the cause remanded.
The other judges concur.