The opinion of the court was delivered by
Kennedy, J.,
who after stating the facts, proceeded as follows: It is contended that the .court below ought to have given judgment in favour of the plaintiff in error. First, because the testator' having directed that the four thousand dollars should be divided equally among his four grand-daughters, and paid by his two grandsons to them, as they respectively attained the age of twenty-one years; and the twenty-seven hundred and fifty dollars charged on the land devised to James B. Hodgson, being the only part of the four thousand dollars which had become payable according to the terms of the will at the time Eliza Hodgson attained twenty-one, the time when she was to receive her legacy or fourth part of the four thousand dollars; that she therefore was bound to look to the land devised to James, as the only fund out of which she could receive her full share of the money; for Joseph not having then attained his age of twenty-one, was not entitled to have possession of the land devised to him, before which he was not bound to pay his twelve hundred and fifty dollars the residue of the four thousand.
The plaintiff below before the commencement of this suit recovered from the alienee of James, one fourth of the twenty-seven hundred and fifty dollars charged on the land devised to him, and seeks now to recover only the like proportion of the twelve hundred and fifty dollars, charged on the land devised to Joseph, with interest thereon from the time that Joseph attained his age of twenty-one years.
[102]*102It is perhaps not very distinctly indicated by the terms of the will that the devisees of the land should each pay an equal fourth part of the sum charged on his devise, to each one of the four grand-daughters as they respectively should attain the age of twenty-one years, but still I think it wiil bear such construction without militating in the least against what would seem to have been the intention of the testator as disclosed throughout the will. Joseph is most explicitly required to pay his twelve hundred and fifty dollars on the day he arrives at the age of twenty-one years.' Now if it had been the design of the testator that any one of his grand-daughters attaining the age. of twenty-one, before Joseph had arrived at that age,, should receive her one-fourth of the four thousand dollars out of the twenty-seven hundred and fifty charged on’ James’s land, it is perfectly clear there was no occasion for the testator requiring as he has, that Joseph should pay his twelve hundred and fifty dollars on' the day that he should arrive at lawful age; because the twenty-seven hundred and fifty dollars coming from James, was greatly more than sufficient to pay Eliza the whole of her one thousand dollars; she being the only one of the four grand-daughters that could attain full age before Joseph would arrive at it. According to the construction then contended for on behalf of the plaintiff in error, he could not be called on to pay any portion of his twelve hundred and fifty dollars until the money charged upon James’s land was exhausted, which is more than sufficient to pay the full shares of the two eldest of the grand-daughters in the four thousand dollars ; consequently Joseph instead of being liable to pay at his age of twenty-one, upon his taking possession of the land as directed by the will, would not become so before the third eldest of the grand-i daughters shall have attained her age of twenty-one, which would certainly be,extending to him an indulgence of several years beyond that allowed by the terms of the will. Unless indeed the testator had intended that Joseph should pay to each one of the four granddaughters the one-fourth of the twelve hundred and fifty dollars, and accordingly pay to Eliza her fourth of it on the day he should arrive at lawful age, ií¡ is not likely that any part of it would have been made payable at that time, because there would have been nobody then to receive it. And this accounts for the 'difference of phraseology used by the testator in directing the time of payment by Joseph from tha,t used in the case of James. For James being older than any of the grand-daughters, would of course attain his full age before the time at which any of them, according to the will, would be entitled to receive her legacy, and is therefore not required to pay on the day he shall arrive at twenty-one years of age, as Joseph is. It is true that this construction does not make it requisite that Joseph should have paid the whole amount charged on his land at the time of his coming! to lawful age, as the letter- of the will would seem to require he should ; nor can I perceive.any construction that [103]*103would furnish occasion for it, but it renders it proper that a part of it should have been paid at that time, and therefore seems to coincide more closely than any other with the intention of the testator as expressed in his will. Hence I think the first objection of the plaintiff in error is not sustainable.
The second is, that if any portion of the legacy bequeathed to Eliza be considered as charged on the land devised to Joseph, that portion of it, whatever it may be, has lapsed and sunk into the land for the benefit of Joseph, inasmuch as Eliza died before he arrived at the age of twenty-one years, the time limited for the payment of it. '
It is perhaps not very easy to reconcile all the cases on this subject. But still, notwithstanding the rule may be as contended for by the counsel for the plaintiff in error, where the money charged on the land or to be raised out of it, is intended for a marriage portion or an advancement at a particular age, and the legatee dies before marriage or the time limited for the advancement'being paid, yet if it appears from the whole of the will or any part of it, that the testator intended it should be otherwise, the rule cannot obtain. The reason of the rule, if it has any, seems to be, that if the occasion for which the gift was designed should never happen, the gift itself ought not to take effect. The first' and leading case in support of this rule, is Pawlett v. Pawlett, 1 Vern. 321; which was followed by Smith v. Smith, 2 Id. 92. Yates v. Phettiplace, Id. 416. S. C. Pre. Ch. 140. Jennings v. Looks, 2 P. Wms. 276. Chandos v. Talbot, Id. 602, 612. Prowse v. Abingdon, 1 Atk. 482. Van v. Clark, Id. 510. Gawler v. Standerwuke, 1 Bro. Ch. Ca. 106, in note to Green v. Pigat, and Harrison v. Naylor, 3 Bro. Ch. Ca. 108. If however the devise of the land, upon which the legacy is charged, becomes vested either in possession or in interest immediately upon the death of the testator, and by the terms of the will is given subject to the payment of the legacy, the legacy must be considered likewise vested; and if the legatee should die before it becomes payable it will pass to his or her representatives; because in such case it is plain, from the terms of the will, that the legatee was as much the object of the testator’s bounty as the devisee, and that the testator intended that the latter should take the land cum onere. I consider this doctrine fully established by the cases of Hutchins v. Foy, Comy. Rep. 716; Hodgson v. Rawson, 1 Ves. 44, and
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The opinion of the court was delivered by
Kennedy, J.,
who after stating the facts, proceeded as follows: It is contended that the .court below ought to have given judgment in favour of the plaintiff in error. First, because the testator' having directed that the four thousand dollars should be divided equally among his four grand-daughters, and paid by his two grandsons to them, as they respectively attained the age of twenty-one years; and the twenty-seven hundred and fifty dollars charged on the land devised to James B. Hodgson, being the only part of the four thousand dollars which had become payable according to the terms of the will at the time Eliza Hodgson attained twenty-one, the time when she was to receive her legacy or fourth part of the four thousand dollars; that she therefore was bound to look to the land devised to James, as the only fund out of which she could receive her full share of the money; for Joseph not having then attained his age of twenty-one, was not entitled to have possession of the land devised to him, before which he was not bound to pay his twelve hundred and fifty dollars the residue of the four thousand.
The plaintiff below before the commencement of this suit recovered from the alienee of James, one fourth of the twenty-seven hundred and fifty dollars charged on the land devised to him, and seeks now to recover only the like proportion of the twelve hundred and fifty dollars, charged on the land devised to Joseph, with interest thereon from the time that Joseph attained his age of twenty-one years.
[102]*102It is perhaps not very distinctly indicated by the terms of the will that the devisees of the land should each pay an equal fourth part of the sum charged on his devise, to each one of the four grand-daughters as they respectively should attain the age of twenty-one years, but still I think it wiil bear such construction without militating in the least against what would seem to have been the intention of the testator as disclosed throughout the will. Joseph is most explicitly required to pay his twelve hundred and fifty dollars on the day he arrives at the age of twenty-one years.' Now if it had been the design of the testator that any one of his grand-daughters attaining the age. of twenty-one, before Joseph had arrived at that age,, should receive her one-fourth of the four thousand dollars out of the twenty-seven hundred and fifty charged on’ James’s land, it is perfectly clear there was no occasion for the testator requiring as he has, that Joseph should pay his twelve hundred and fifty dollars on' the day that he should arrive at lawful age; because the twenty-seven hundred and fifty dollars coming from James, was greatly more than sufficient to pay Eliza the whole of her one thousand dollars; she being the only one of the four grand-daughters that could attain full age before Joseph would arrive at it. According to the construction then contended for on behalf of the plaintiff in error, he could not be called on to pay any portion of his twelve hundred and fifty dollars until the money charged upon James’s land was exhausted, which is more than sufficient to pay the full shares of the two eldest of the grand-daughters in the four thousand dollars ; consequently Joseph instead of being liable to pay at his age of twenty-one, upon his taking possession of the land as directed by the will, would not become so before the third eldest of the grand-i daughters shall have attained her age of twenty-one, which would certainly be,extending to him an indulgence of several years beyond that allowed by the terms of the will. Unless indeed the testator had intended that Joseph should pay to each one of the four granddaughters the one-fourth of the twelve hundred and fifty dollars, and accordingly pay to Eliza her fourth of it on the day he should arrive at lawful age, ií¡ is not likely that any part of it would have been made payable at that time, because there would have been nobody then to receive it. And this accounts for the 'difference of phraseology used by the testator in directing the time of payment by Joseph from tha,t used in the case of James. For James being older than any of the grand-daughters, would of course attain his full age before the time at which any of them, according to the will, would be entitled to receive her legacy, and is therefore not required to pay on the day he shall arrive at twenty-one years of age, as Joseph is. It is true that this construction does not make it requisite that Joseph should have paid the whole amount charged on his land at the time of his coming! to lawful age, as the letter- of the will would seem to require he should ; nor can I perceive.any construction that [103]*103would furnish occasion for it, but it renders it proper that a part of it should have been paid at that time, and therefore seems to coincide more closely than any other with the intention of the testator as expressed in his will. Hence I think the first objection of the plaintiff in error is not sustainable.
The second is, that if any portion of the legacy bequeathed to Eliza be considered as charged on the land devised to Joseph, that portion of it, whatever it may be, has lapsed and sunk into the land for the benefit of Joseph, inasmuch as Eliza died before he arrived at the age of twenty-one years, the time limited for the payment of it. '
It is perhaps not very easy to reconcile all the cases on this subject. But still, notwithstanding the rule may be as contended for by the counsel for the plaintiff in error, where the money charged on the land or to be raised out of it, is intended for a marriage portion or an advancement at a particular age, and the legatee dies before marriage or the time limited for the advancement'being paid, yet if it appears from the whole of the will or any part of it, that the testator intended it should be otherwise, the rule cannot obtain. The reason of the rule, if it has any, seems to be, that if the occasion for which the gift was designed should never happen, the gift itself ought not to take effect. The first' and leading case in support of this rule, is Pawlett v. Pawlett, 1 Vern. 321; which was followed by Smith v. Smith, 2 Id. 92. Yates v. Phettiplace, Id. 416. S. C. Pre. Ch. 140. Jennings v. Looks, 2 P. Wms. 276. Chandos v. Talbot, Id. 602, 612. Prowse v. Abingdon, 1 Atk. 482. Van v. Clark, Id. 510. Gawler v. Standerwuke, 1 Bro. Ch. Ca. 106, in note to Green v. Pigat, and Harrison v. Naylor, 3 Bro. Ch. Ca. 108. If however the devise of the land, upon which the legacy is charged, becomes vested either in possession or in interest immediately upon the death of the testator, and by the terms of the will is given subject to the payment of the legacy, the legacy must be considered likewise vested; and if the legatee should die before it becomes payable it will pass to his or her representatives; because in such case it is plain, from the terms of the will, that the legatee was as much the object of the testator’s bounty as the devisee, and that the testator intended that the latter should take the land cum onere. I consider this doctrine fully established by the cases of Hutchins v. Foy, Comy. Rep. 716; Hodgson v. Rawson, 1 Ves. 44, and Godwin v. Munday, 1 Bro. Ch. Ca. 191. In Hutchins v. Foy, the legacy was charged on -real estate, devised in remainder to Foy, the defendant, to be paid by him upon his becoming entitled to the possession thereof. The niece married a person of the name of Gover, and dying afterwards before the remainder became vested in possession in Foy, Gover the husband took out administration to his wife, and assigned the legacy to the plaintiff in satisfaction of a debt. The legacy was held tobe transmissible because the remainder vested immediately in Noy upon [104]*104the death of the testator, who according to the will took it cum onere, and therefore the legacy became vested at the same time in the legatee. Lord Hardwicke, who recognizes in Hodgson v. Rawson, 1 Vesey, 47, the principle upon which the legacy was adjudged to be transmissible in this casé, says, “it was held'to be transmissible on this ground; that the remainder vested immediately by the death of the testator, and therefore the legacy vested in those to whom payable, and the devisee must take it cum onere ; it being equally intended that the legacy should be paid as that the devisee should have the estate;” and he accordingly ruled the legacy to be transmissible for the same reason in the case then under his consideration. So upon the same principle was the case of Godwin v. Munday decided. The testator there devised an estate to his -second son in fee, after the decease of his (the testator’s) wife, with a proviso, that he should pay to the testator’s daughter Mary one hundred pounds, to be paid within one year after the death or marriage of his wife; after the death of the testator Mary died leaving the wife still living, and held that it was a vested legacy in Mary, and that upon her death it was transmitted by .operation of law to her representatives. Now the case under consideration here is similar in all its leading features to those just noticed, and falls directly within the same class, and therefore ought to be governed by the same rule. That the devise of the land to Joseph Hodgson was a remainder in fee vesting in interest immediately upon the death of the testator, can admit of no doubt, when compared with the cases of Boraston, 3 Co. 19. Webb v. Hearing, Cro. Jac. 415. Manfield v. Dugard, 1 Eq. Ca. Abr. 195, pl. 4. S. C. Gilb. Eq. Rep. 36. Hayward v. Whitby, 1 Burr. 228. Satterthwaite v. Satterthwaite, 1 BL Rep. 519,and Kerlin v. Bull, 1 Dall. 175. According to the principles laid down in all these cases, an estate in remainder vested in Joseph the1 instant of the testator’s death, subject to the payment of twelve hundred and fifty dollars. He therefore took it cum onere; and those to whom the money is directed to be paid, became invested at the same time with the right to receive their respective portions of it when the times limited for the payment thereof should come round.. Thus the remainder and the charge upon it vested at one and the same instant, which of itself goes to show that it was equally the intention of the testator that the legacies should be paid, as that Joseph should have the land. Resides, this construction seems to be necessary in order to carry into effect the plain intention of the testator, as manifested in other parts of his will, which was to divide his estate somewhat equally among his six grand-children, who would have inherited his estate in equal portions, as tenants in common, if he had died intestate. That he intended to place his four grand-daughters upon an equal footing with his two grand-sons, in the distribution of his estate ampng them, is-pretty strongly evinced by his bequeathing to them [105]*105all equally the residue of his personal estate, after, making provision for his wife out of it during her life, together with the rents which should be received by his executors from his real estate, up to the times respectively at which his grand-sons were to have the possession of it; hence I am inclined to think that the testator believing his two farms, which he 'devised to his grand-sons, could not be divided without injuring the value of them, therefore charged them with the payment of the four thousand dollars to his grand-daughters, for the purpose of giving to each of the six an equal_ portion of his whole estate.
There is also a second ground, if it were necessary to rely on it, upon which the recovery of the plaintiff below, perhaps might be sustained. It would seem according to the principle laid down in King v. Withers, Gilb. Eq. Rep. 27, that where a legacy charged upon land depends upon two contingencies, and one of them only happens, it is sufficient to have the legacy raised. This principle is mentioned with seeming approbation by Lord Hardwicke in Lowther v. Condon, Barnard. Ch. Rep. 329-30. 2 Atk. 129. Now in the present case it may be said, that by the will the payment of the legacy to Eliza, was made to depend upon two contingencies, that is, the attainment of twenty-one years of age by her, and again the attainment of the same age by Joseph, the devisee of the land; she having attained her age of twenty-one before her death, one of the contingencies at least happened in her lifetime, though the other did not, but has happened since and before the institution of this suit, and therefore the legacy became vested and transmissible.
But there is a third ground upon which the defendant in error is entitled to recover according to the authority of a train of cases that cannot be shaken or questioned. It is evident from the will that the postponement of the payment of the legacy to Eliza from the time she came of full age, until Joseph the devisee should arrivé at it, was not on account of the age of Eliza the legatee, but clearly from a regard to the convenience of Joseph himself and the circumstances of the estate charged with the legacy. The time of payment having then been postponed merely for the purpose of favouring Joseph, it would be unreasonable, if not unjust, to hold that the death of the legatee during such indulgence, should in effect give the legacy to him to the prejudice of her personal representatives. The first case in which the legacy seems to have been considered vested and transmissible on this ground is King v. Withers, Talb. Ca. 117. Pre. Ch. 348, which was affirmed in the House of Lords, 4 Bro. Par. Ca. 228, and recognized by Lord Hardwicke in Lowther v. Condon, 2 Atk. 128, 9, as well as acknowledged in the cases of Butler v. Duncombe, 1 P. Wms. 457. Pitjield’s case, 2 P. Wms. 513. Hutchins v. Foy, 716. Emes v. Hancock, 2 Atk. 507. Sherman v. Collins, 3 Atk. 322. Hodgson v. Rowson, 1 Ves. 44. Jeale v. Titchener, Amb. 703. S. C. 1 Bro. Ch. Ca. 120, (in note.) Tunstall v. Brachen, [106]*106Amb. 167 . Dawson v. Killet, 1 Bro. Ch. Ca. 119, and many others not necessary to be mentioned.
.The Judgment is therefore affirmed".