Moffit v. Varden's Heirs & Executors

17 F. Cas. 561, 5 D.C. 658, 5 Cranch 658

• Court: U.S. Circuit Court for the District of District of Columbia
• Decided: March 15, 1840
• Status: Published

Opinions

Cranch, C. J.

The cause is now submitted for final decree. No exception is taken to the balance of $637.52, reported by the auditor, as due to the executors for advances made by them to the devisees; nor to the principle assumed by the auditor, that those who have received less than their share of those advances should be compensated out of the proceeds of the sales of the land ; and that the balance due to the executors should be reimbursed out of the same proceeds, if they should be sufficient to pay both ; that is, to put those, who have received less than their shave of the advances, upon a par with those who have received more than their share, and also to pay the balance due to the executors.

It appears by the report that it will require $>923.12, to put all the devisees upon a par as to the advances made by the executors, which, added to the balance of $637.52, due to the executors, makes the sum of $1,560.64, to be raised by sales of the land, to do justice to all parties. But the sales produced only $721; and the question is, how is that money to be applied. Shall the executors receive it and apply it to the settlement of the balance due to them, and leave the deficient devisees to get their money from those who have received more than their shares ; or shall those deficient receive it and compel the executors to resort to the de-visees who have been overpaid ?

If those deficient devisees should sue the executors for the balance of their legacies, or proportion of the sales of the real estate, would it be a good defence for the executors to say that they had overpaid the other devisees ? If the deficient devisees should bring a suit against the other devisees to compel them to refund the surplus which they have received, could they recover ? Have not the executors made these advances and over-payments in their own wrong ? And should they not have taken security to refund ? I am inclined to think that the proceeds of the sales of the land should be applied to the equalization of the devisees ; and that the executors must look to those devisees who have been overpaid to get back their money.

Then, if the proceeds of the sales of the lands are to be divided among the devisees, it becomes necessary to ascertain who they are; and this presents the question, whether Richard Varden, who was born after the death of the testator, was entitled to an equal share with the other children. I am of opinion that he was. He was in ventre sa mere, at the death of the testator ; and if the devise had been to all the children living at the testator’s death, he would have been a legal devisee. See Clarke v Blake, 2 Ves. Jr. 673; 3 Bro. C. C. 320, S. C.; 2 H. Bl. 379, S. C.; and the cases collected in 8 Com. D. Appendix 425, 426,1 Am. edit, by Day, § 5.

But by this will the property is to be equally divided among the children “when they arrive at the age of maturity.”

In such case the legacies do not vest in possession until the eldest of the children arrives at the age of maturity ; that is, twenty-one years of age; and in such cases the established rule of construction is, that all the children then living, (that is, when the eldest shall have arrived at the age of maturity,) shall come in for their share, whether born before or after the death of the testator. See Barrington v. Tristram, 6 Ves. 345, and the cases in 8 Com. Dig. 425, 426; Titcomb v. Butler, 3 Simons, 417; an d Balm v. Balm, Id. 492.

The reason of this rule is, that when one of the legatees becomes entitled to receive his share, it is necessary to ascertain the whole number of legatees among whom the estate is to be divided.

The shares of those who have died in the mean time, will, I apprehend, have lapsed into the general residuum, to be divided among the survivors; and the children born in the mean time become entitled to their equal shares with the other children.

The time when the eldest of the children arrived at the age of maturity is not ascertained in these proceedings, nor the precise time of the birth of Richard Varden, He states, in his answer, that he has been informed and believes that he was born about three weeks after the death of the testator, who died on the day of the date of the will, or on the next day; for the will was made on the 7th and was proved on the 10th of October, 1809 ; so that unless one of the legatees came of age within three weeks after the death of the testator, Richard was entitled to his share.

The time of the death of John is not ascertained. If he died before the eldest of the children came of age, his share lapsed into the residuum. If he died after, his share vested in him, and goes to his next of kin, in equal degree. He went to sea in 1819, and has not been heard of since the beginning of the year 1820. In analogy to the statute of bigamy, the presumption of death arises if seven years have lapsed since the party has been heard of; so that it may be presumed that he died in the beginning of the year 1827. The bill in this case was filed November 30, 1826, and states that the complainants, and several of the other legatees, were then of full age ; so that there is a strong presumption that John’s legacy vested before his death ; and that it should go to his next of kin, namely, his brothers and sisters.

The devise in this case, being directly to the children of the testator’s brother and sister, the devisees take per capita, and not per stirpes ; and each is entitled to an equal share.