Conwell's Adm'r v. Pettyjohn

5 Del. 296

• Court: Superior Court of Delaware
• Decided: July 5, 1850
• Status: Published

Opinion

By the Court.

Booth, Chief Justice.

When a legacy is directed to be paid at a future time, or on a future event, it is vested or contingent, according to the intent and meaning of the testator, as expressed in his will. If the time or event is annexed to the payment of the legacy, it is vested; if to the Substance or gift of the legacy, it is contingent; because such appears to be the intention of the testator.. Therefore, if a legacy be given to a person, payable, or to be paid, at, or when he shall attain the age of twenty-one years ; or at or upon any other definite period or event; the legacy becomes vested immediately on the testator’s death; and is transmissible to the executors or administrators of the legatee, although he dies before the time of payment. But if the words “payable” or “ to be paid” are omitted, and the legacy is given at twenty-one; or at or upon any other future period or event; the interest is contingent, and depends ,for its vesting on the legatee being alive at the period or event specified.

In the present case, upon the construction of the whole will of Jonathan Hevalo, the testator, it is manifest, that he intended to give to his sister, Susan Morris, all his estate both real and personal, for the term of her natural life, or during her widowhood, except one hundred dollars left to- Susan Conwell; and upon the event of the second marriage, or death, of Susan Morris, that three legacies each of three hundred dollars, should be paid out of his estate, one to each of the three children of John J. Conwell, namely: John T., Elias, and Elizabeth Conwell; and that the residue of his estate, .both real and personal, should be equally divided between his two nephews, William R. Morris and Heavilo Morris, the sons of his said sister, Susan Morris, their heirs and assigns forever. If it be argued, that from the words of the will, the legacies of three hundred dollars do not vest until the marriage or death of Susan Morris; it may, for the same reason, be contended, that the bequest of the residue of the testator’s personal estate does not vest until then ; for the language applied to each, is in substance the same. The legacies are given at the marriage or decease of Susan Morris, to be paid in cash by the executor. The residue is given from and after her decease or marriage, to be equally divided between her two sons. The devise of the life estate is placed after the legacies and the gift of the residué ; but it is immaterial in what order the several bequests and devises stand in a will. The testator clearly intended that his sister, Susan Morris, immediately upon his death, should hold and enjoy all his estate (except the aforesaid one hundred dollars) during her life time or widowhood ; and upon her death or second marriage, that the three legacies, each of three hundred dollars, should be deducted from his estate, and they and the residue be possessed and enjoyed immediately after the determination of the estate of Susan Morris, by the several persons who were the objects of the testator’s bounty. The bequests of the legacies and the residue are in the nature of remainders; and became vested interests, as well as the life estate of Susan Morris, immediately upon the death of the testator. Therefore, the legacy.of three hundred dollars bequeathed to Elias Conwell, was not defeated by his dying after the testator and in the life time of Susan Morris, but goes to the plaintiff, James M. Carey, as the administrator of said Elias Conwell, deceased.

Mr. Layton, for plaintiff. Mr. Houston, for defendant.