Mr. Justice S WAYNE
delivered the opinion of the court.
This ease turns upon the following clause of the will of William Cooper, deceased:
“To my daughter, Elizabeth Cropley, at her mother’s death, I give and bequeath the rent of my house on Pennsylvania Avenue, in the city of Washington, situated on square-, for and during her life; and at her decease it is my will that the said-be sold, and the avails therefrom become the property of her children or child, when he, she, or they have arrived at the age of twenty-one years, the interest in the meantime to be applied to their maintenance.”
The testator died in 1845. lie left at his decease a widow, Sarah Cooper, and four children, William, John, Joseph, and Elizabeth, the complainant. William and Joseph were married and had children. John was unmarried. Elizabeth was intermarried with Richard Cropley, and had living one child, William Cooper Cropley, then about three years old. Shortly after the testator’s death, Elizabeth gave birth to a daughter, who died in early infancy. Richard Cropley, the husband of Elizabeth, died in 1851. ller mother died in 1854. Her son, William Cooper Cropley, died in 1870, at the age of twenty-eight years, not having married. After his death, Elizabeth Cropley, the complainant, then fifty-six years of age, claimed to own the house on Pennsylvania Avenue devised to her for life. Her brothers, William, John, and Joseph, set up claims as heirs-at-law of their father, alleging that the bequest to the children of Elizabeth had failed by reason of the death of both of them before the death of their mother, and of the younger one before reach
ing the age of twenty-one years. The complainant thereupon filed this bill to obtain a construction of the will, and to ascertain her rights.
The question presented for our determination is, whether the bequest to her children lapsed, as is insisted by the appellees; or, in other words, whether it was vested or contingent.
It is an axiom in the law of wills that the intention of the testator shall prevail. Upon looking at this will as regards the four children of the testator, we find that the provision made for each is clear and explicit. He gave to William, after his mother’s death, the income from $1250 of the stock of the Potomac Insurance Company, and a vacaut lot on Capitol Ilill. At his death, it is directed “that the said vacaut lot and the aforementioned stock be equally divided between his children, their heirs and assigns forever.” To John, at his mother’s death, was given the use- of a farm; or, if sold by his mother, the interest accruing from the proceeds, for life. If he should marry and have lawful issue, at his death, the farm or its avails was to be equally divided among his children when they should arrive at the age of twenty-one, “ the interest in the meantime to be applied to their maintenance.” This clause concludes as follows: “Should my son John die without issue, it is my will that the said farm or its avails, in case of its being sold, be equally divided among my other children, share and share alike, to them, their heirs and assigns forever.” To Joseph, at his mother’s death, was given the interest of $1500 of Alexandria Corporation stock, and at his death it was “ to be equally divided between his children.” Then follows the provision for Elizabeth and her children.
The property given to the sons who had children, is given-to them for life, and at their death to their children in equal shares. There is no provision beyond this. The gift is absolute. The children of John, if he should have any, were not to receive their shares until they should arrive at the age of twenty-one. But the interest, in the meantime,.was
to be applied to their support. It was only in the event of his dying without issue that the further provision was to take effect. The entire failure of issue at his death and not the failure of such issue to reach the age named was the condition of the gift over to his brothers and sister.
So as respects the complainant, who, like her brothers William and Joseph, had issue living at the death of the testator. The gift is to her and her child or children, and there is no devise or bequest over in any contingency that might occur. The mother and children were the objects of the testator’s solicitude and bounty. He looked no further into the future. William, Joseph, and Elizabeth, and their children were thus placed upon a footing of equality. If John should have lawful issue living at his death; such issue would be in the same category with the children of William, Joseph, and Elizabeth. It seems clear to us that the testator intended that what was given to each of his children should vest interest in them and in their children as early as possible, the period of enjoyment to be deferred in each case as was special ly provided, and .that the result should be the same in John’s case if issue should thereafter be born to him and survive him. Beyond his grandchildren, including the children iff' John, if any should be living at his death, the testator left it to the local law of descent and distribution to meet any emergency that might arise.
It was only in the single event of John dying without issue, that it was declared by the testator that the property thus given to one of his children should go over to the others.
If we pursue the subject before us by the light of the rules of law which apply, we shall reach the same conclusion. An analysis of the clause in question eliminates these particulars :
Laying out of view the estate of her mother, a life estate is given to Elizabeth Cropley.
At her death, whenever that might occur, and whatever then the age of her offspring, the property was to be sold
and converted into money. Her death and the sale might have occurred immediately after the death of the testator.
Upon the sale being made, her offspring, if minors, would have become entitled to the interest of the fund until the age of twenty-one years was reached. The right to receive the whole or an.aliquot part of the fund would then have accrued.
The time of selling had no relation to the age of the legatees.
It depended wholly on tbe death of the tenant of the life estate.
The effect of her dying during their infancy would have been that they would have taken the interest instead of the principal of the fund up to the age of twenty-one, and then the principal instead of the interest.
The real estate having been directed by the will to be converted into money, it is to be regarded for all the purposes of this case as if it were money at the time of the death of the testator. That it was not to be sold until after the termination of two successive life estates does not affect the application of the principle. Equity regards substance and not form, and considers that as done which is required to be done. The sale being directed absolutely, the time is immaterial.
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Mr. Justice S WAYNE
delivered the opinion of the court.
This ease turns upon the following clause of the will of William Cooper, deceased:
“To my daughter, Elizabeth Cropley, at her mother’s death, I give and bequeath the rent of my house on Pennsylvania Avenue, in the city of Washington, situated on square-, for and during her life; and at her decease it is my will that the said-be sold, and the avails therefrom become the property of her children or child, when he, she, or they have arrived at the age of twenty-one years, the interest in the meantime to be applied to their maintenance.”
The testator died in 1845. lie left at his decease a widow, Sarah Cooper, and four children, William, John, Joseph, and Elizabeth, the complainant. William and Joseph were married and had children. John was unmarried. Elizabeth was intermarried with Richard Cropley, and had living one child, William Cooper Cropley, then about three years old. Shortly after the testator’s death, Elizabeth gave birth to a daughter, who died in early infancy. Richard Cropley, the husband of Elizabeth, died in 1851. ller mother died in 1854. Her son, William Cooper Cropley, died in 1870, at the age of twenty-eight years, not having married. After his death, Elizabeth Cropley, the complainant, then fifty-six years of age, claimed to own the house on Pennsylvania Avenue devised to her for life. Her brothers, William, John, and Joseph, set up claims as heirs-at-law of their father, alleging that the bequest to the children of Elizabeth had failed by reason of the death of both of them before the death of their mother, and of the younger one before reach
ing the age of twenty-one years. The complainant thereupon filed this bill to obtain a construction of the will, and to ascertain her rights.
The question presented for our determination is, whether the bequest to her children lapsed, as is insisted by the appellees; or, in other words, whether it was vested or contingent.
It is an axiom in the law of wills that the intention of the testator shall prevail. Upon looking at this will as regards the four children of the testator, we find that the provision made for each is clear and explicit. He gave to William, after his mother’s death, the income from $1250 of the stock of the Potomac Insurance Company, and a vacaut lot on Capitol Ilill. At his death, it is directed “that the said vacaut lot and the aforementioned stock be equally divided between his children, their heirs and assigns forever.” To John, at his mother’s death, was given the use- of a farm; or, if sold by his mother, the interest accruing from the proceeds, for life. If he should marry and have lawful issue, at his death, the farm or its avails was to be equally divided among his children when they should arrive at the age of twenty-one, “ the interest in the meantime to be applied to their maintenance.” This clause concludes as follows: “Should my son John die without issue, it is my will that the said farm or its avails, in case of its being sold, be equally divided among my other children, share and share alike, to them, their heirs and assigns forever.” To Joseph, at his mother’s death, was given the interest of $1500 of Alexandria Corporation stock, and at his death it was “ to be equally divided between his children.” Then follows the provision for Elizabeth and her children.
The property given to the sons who had children, is given-to them for life, and at their death to their children in equal shares. There is no provision beyond this. The gift is absolute. The children of John, if he should have any, were not to receive their shares until they should arrive at the age of twenty-one. But the interest, in the meantime,.was
to be applied to their support. It was only in the event of his dying without issue that the further provision was to take effect. The entire failure of issue at his death and not the failure of such issue to reach the age named was the condition of the gift over to his brothers and sister.
So as respects the complainant, who, like her brothers William and Joseph, had issue living at the death of the testator. The gift is to her and her child or children, and there is no devise or bequest over in any contingency that might occur. The mother and children were the objects of the testator’s solicitude and bounty. He looked no further into the future. William, Joseph, and Elizabeth, and their children were thus placed upon a footing of equality. If John should have lawful issue living at his death; such issue would be in the same category with the children of William, Joseph, and Elizabeth. It seems clear to us that the testator intended that what was given to each of his children should vest interest in them and in their children as early as possible, the period of enjoyment to be deferred in each case as was special ly provided, and .that the result should be the same in John’s case if issue should thereafter be born to him and survive him. Beyond his grandchildren, including the children iff' John, if any should be living at his death, the testator left it to the local law of descent and distribution to meet any emergency that might arise.
It was only in the single event of John dying without issue, that it was declared by the testator that the property thus given to one of his children should go over to the others.
If we pursue the subject before us by the light of the rules of law which apply, we shall reach the same conclusion. An analysis of the clause in question eliminates these particulars :
Laying out of view the estate of her mother, a life estate is given to Elizabeth Cropley.
At her death, whenever that might occur, and whatever then the age of her offspring, the property was to be sold
and converted into money. Her death and the sale might have occurred immediately after the death of the testator.
Upon the sale being made, her offspring, if minors, would have become entitled to the interest of the fund until the age of twenty-one years was reached. The right to receive the whole or an.aliquot part of the fund would then have accrued.
The time of selling had no relation to the age of the legatees.
It depended wholly on tbe death of the tenant of the life estate.
The effect of her dying during their infancy would have been that they would have taken the interest instead of the principal of the fund up to the age of twenty-one, and then the principal instead of the interest.
The real estate having been directed by the will to be converted into money, it is to be regarded for all the purposes of this case as if it were money at the time of the death of the testator. That it was not to be sold until after the termination of two successive life estates does not affect the application of the principle. Equity regards substance and not form, and considers that as done which is required to be done. The sale being directed absolutely, the time is immaterial.
Where a bequest is given by a direction to pay when the legatee attains to a certain age, and the interest of the fund is given to him in the meantime, this shows that a-present gift was intended, and tbe legacy vests in interest at the death of the testator.
A bequest in the form of a direction to pay at a future period vests in interest immediately if the payment be post
poned for the convenience of the estate or to let in some other interest. The payment of debts is an instance of the former, and a prior temporary provision for some other person, as for Elizabeth Cropley in this case, is an instance of tbe latter. In all such cases it is presumed that the testator postponed the time of enjoyment by the ultimate legatee for the purpose of the prior devise or bequest.
A devise of lands to be sold after the termination of a life estate given by the will, the proceeds to be distributed thereafter to certain persons, is a bequest to those persons and vests at the death of the testator.
It is a consideration of weight that if William Cooper Cropley, who died at the age of twenty-eight, had married and left children, according to the proposition of the appellees, they could have taken no benefit from the provision made for their father. Such could not have been the intention of the testator. In real property cases, where the question arises whether a remainder is vested or contingent, this consequence is held to be conclusive — that it was the former.
In
Goodtille
v.
Whitby,
Lord Mansfield said: “Here, upon the reason of the thing, the infant is the object of the testator’s bounty, and the testator does not mean to deprive him of it in any event. Now, suppose this object of the testator’s bounty marries and dies before his age of twenty-one leaving children, could the testator intend, in such event,to disinherit him? Certainly he could not.” In
Doe
v.
Perryn,
Buller, J., said: “But if this were held not to
vest till the death of the parents, this inconvenience would follow: that it would not go to grandchildren, for if a child were born, who died in the lifetime of his parents, leaving issue, such grandchild could not take, which could not be supposed to be the intention of the devisor.” This reasoning applies to the present case.
Boraston’s
Case
was referred to by counsel on both sides. The point there ruled was as follows: If real estate be devised to A. when he shall attain a given age, and until A. attains that age the property is devised to B., A. takes an immediate vested estate, not defeasible on his.death uuder that age; the gift being read as a devise to B. for a term of years, with remainder to A. The same doctrine has since been affirmed in numerous other cases, and is now a canon of the English law.
Boraston's-Case
related to real property. If this were such a case it. would be in point and conclusive. It has been applied by American courts to bequests of personalty.
The subject of vested and contingent remainders was examined by this court in
Poor
v.
Considine.
Chancellor Kent says:
“ It is the uncertainty of
the right
of enjoyment and not the uncertainty
of its actual enjoyment
which renders a remainder contingent. The present capacity of taking effect in possession, if the possession become vacant, distinguishes a vested from a contingent remainder, and not the certainty that the possession will ever become vacant while the remainder continues.”
“"When a remainder is limited to a person in esse and ascertained to take effect by words of express limitation on the determination of the preceding pardeularesfate, this remainder is
most clearly and unquestionably
vested.”
Bequests involving the question before us may be resolved into two classes:
(1.) Those where the time or event referred to in the
future is of the substance and a condition of the gift, and, hence, marks the time of vesting in interest.
(2.) Those where the vesting in interest has already occurred, and such event or time only designates the period of the commencement of the enjoyment.
We think this case belongs to the second category.
We hold that William Cooper Cropley took a vested interest in the bequest in question at the death of the testator, but subject to open and let in after-born children, and to take effect in'enjoyment at the death of his mother; that his sister, at her birth, took a like vested interest to the extent of a moiety; that at her death her right passed to him as distributee, according to the Statute of Distribution of Maryland; that at his death all his right passed to his mother, the complainant, as a like distributee under the same statute. If the property shall be sold at her death all the avails will go to her legal representative. She may dispose of them in advance by will, or leave them to be distributed according to the statute.
At the age of twenty-one William Cooper Cropley might have elected to take the property instead of its proceeds. In that event no sale could have taken place. The complainant is now the only party in interest. Under the circumstances, we think the complainant may exercise the right of election as her son, if living, could have done, and that, under the general prayer for relief in the bill, she may accomplish that object in this case, if she shall desire to do so.
Decree reversed, and the cause remanded with directions to enter a decree
In conformity to this opinion.