BALDWIN, Circuit Justice.
This case turns on the question, whether by the will of Mr. Harrison, the residuary legacies of Sarah Stockton, Grace Dennis and Henry Beckman, who were of age at the death of the testator, but died intestate and without issue, before James H. White became, or would, if living, be twenty-one years of age, go to their legal representatives, or fall into the residuary fund, for the benefit of the residuary legatees who were then alive. The fund out of which the residuary legacies are payable, is principally the proceeds of the sale of real estate in New York, now in the hands of the executors for distribution, and has been considered by the counsel on both sides, as personal property at the death of the testator, for all the purposes of the will (without entering into any argument on this point, though it is one which must be settled before the main question can- be decided), and converted into money. The general principle, that land directed to be sold, is, in equity, considered as sold, and as in money, is too well settled to be questioned; on this point, the decisions of the supreme court of Pennsylvania, in Price v. Watkins, 1 Dall. [1 U. S.] 8, of the supreme court of New Jersey, in Fairly v. Kline, 2 Penning. [3 N. J. Law] 755, and the supreme court of the United States, in Graig v. Leslie, 3 Wheat. [16 U. S.] 577, are binding on us as authority. The terms of this will are too explicit to admit of a doubt of the case coming within the rule; the real estate did not descend to the heir for a moment, it passed immediately to the executors; the rents were specially appropriated till James H. White came, or would become of age. when the direction to sell was positive and absolute, and the whole proceeds were to be applied to the purposes of the will. No contingency could happen, by which anj- part of the fund could revert; the whole must go either to the residuary legatees, or the representatives of those who died before the time of division. A contingent' provision was made for the testator's son, his heir at law, on condition of his return to this country; but this provision was made out of the proceeds of the land, and not a charge upon it; it was made too on a condition precedent, which was not performed, so that the real estate could in no event revert to the heir [364]*364as land, or lie become entitled to any part of tlie proceeds as money. Tlie inheritance was destroyed to all intents and purposes, and the estate irrevocably converted into personalty, and so we must consider it for all the purposes of the will.
In some respects its meaning admits of no doubt. It directs the residuary fund to be divided among the residuary legatees, in proportion to the express legacies given to them respectively; the division being unequal. they take as tenants in common, and not as joint tenants. The rents and profits, during the lifetime of his son, until the maturity of James H. AVliite, are specifically •appropriated; the residuary fund is, therefore, a remainder, be'queathed to tenants in common, who were all alive and of full age at the death of the testator, and fully capable of taking the bequests.
The only lapse provided for in the will, is in case of any of the legatees, who were minors at tlie death of the testator, should die before twenty-one; their specific legacies shall fall into the residuum, and be paid to the residuary legatees, in the same proportions as before directed. This lapse is for their benefit, and as none other is expressly provided for, it is a strong indication of the intent of the testator, that there should be no other lapse in any event. The two events on which the division was to be made, are the arrival of James H. t^'kite to twenty-one, or the time when, if living, he would have attained that age, and the death of the testator’s son, both of which were certain to happen. If, therefore, there was any interest vested in the residuary legatees before the happening of these contingencies, it could not be defeated. This brings us to the main question, whether there was any such interest: in the consideration of which we shall refer to the general principles established in eases in equity, rather than to the cases themselves. It is not necessary to the vesting of a legacy, that it be capable of present enjoyment in possession; it is vested when the gift is immediate in interest, of a present right of enjoyment to a person capable of future reception in possession, on the happening of some event which is certain. It is contingent when the gift is prospective to a contingency, when no present right to future enjoyment is given, or given to a person who has not a present capacity to take and enjoy the thing given, let the contingency happen when it Aay. The present gift and the present capacity refer to the death of the testator, when the will takes effect. If the contingency is attached to the thing, or right given, or the person to take, the interest is contingent; if it is attached to the time when the thing or right is to be enjoyed, it is vested, the contingency referring merely to the payment or division. In the former case, it is in the nature of a condition precedent, which is the consideration of the gift; but in the latter, it is the mere postponement of payment of what is due by absolute right. This does not make the legacy contingent, unless the postponement arises from the situation of the legatee on account of the want of an existing present capacity to take and enjoy; or when the ascertainment of the person to take, is-referred to a future period, and the right to take depends on his being in esse at that time. Nor if the postponement is owing to-the situation of the estate or fund, out of which the legacy is to be paid, can the legacy on that account be held to be contingent. Vide 1 Eop. Leg. 37f> et seq., and cases cited. The words of this will, speaking at the death of the testator, are in proesenti. “I give and bequeath,” the gift is present and absolute,, the legatee is alive, and capable of taking and enjoying, the thing bequeathed was in existence, and must be enjoyed on certain events which attach to the distribution or payment only, and not to the right to the legacy. By the mode of distribution among the residuary legatees, the testator has referred to the special legacies, which are unquestionably vested in the adult legatees, and do not lapse by their death. As these legacies are made the standard of distribution among the residuary legatees, it is clear that the residuary fund should go to the-same persons who were entitled to the special legacies given to those who should die before they arrived at twenty-one. The surviving residuary legatees could not take the special legacies of the deceased adult legatees; if then we decree the residuary fund to the survivors, we make a rule of distribution among them incompatible with that prescribed in the will. In looking at its provisions, it is apparent that the object of the will, in postponing the payment, was for the convenience of the estate out of which the legacies are payable; it was to provide a fund from the rents and profits to meet specific purposes, without the least reference to-the situation of the residuary legatees. When these purposes were effected, the executors became their trustees as to the remainder bequeathed to them, the right to which in possession was consummated at the time fixed for distribution. This remainder was the capital of the fund created by the sale of the real estate; it was carefully reserved by the testator for the residuary legatees, who were his nearest relatives, and he could not have intended, that on the death of any of them, their shares should be taken from the next of kin, and go to strangers to-the deceased.
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BALDWIN, Circuit Justice.
This case turns on the question, whether by the will of Mr. Harrison, the residuary legacies of Sarah Stockton, Grace Dennis and Henry Beckman, who were of age at the death of the testator, but died intestate and without issue, before James H. White became, or would, if living, be twenty-one years of age, go to their legal representatives, or fall into the residuary fund, for the benefit of the residuary legatees who were then alive. The fund out of which the residuary legacies are payable, is principally the proceeds of the sale of real estate in New York, now in the hands of the executors for distribution, and has been considered by the counsel on both sides, as personal property at the death of the testator, for all the purposes of the will (without entering into any argument on this point, though it is one which must be settled before the main question can- be decided), and converted into money. The general principle, that land directed to be sold, is, in equity, considered as sold, and as in money, is too well settled to be questioned; on this point, the decisions of the supreme court of Pennsylvania, in Price v. Watkins, 1 Dall. [1 U. S.] 8, of the supreme court of New Jersey, in Fairly v. Kline, 2 Penning. [3 N. J. Law] 755, and the supreme court of the United States, in Graig v. Leslie, 3 Wheat. [16 U. S.] 577, are binding on us as authority. The terms of this will are too explicit to admit of a doubt of the case coming within the rule; the real estate did not descend to the heir for a moment, it passed immediately to the executors; the rents were specially appropriated till James H. White came, or would become of age. when the direction to sell was positive and absolute, and the whole proceeds were to be applied to the purposes of the will. No contingency could happen, by which anj- part of the fund could revert; the whole must go either to the residuary legatees, or the representatives of those who died before the time of division. A contingent' provision was made for the testator's son, his heir at law, on condition of his return to this country; but this provision was made out of the proceeds of the land, and not a charge upon it; it was made too on a condition precedent, which was not performed, so that the real estate could in no event revert to the heir [364]*364as land, or lie become entitled to any part of tlie proceeds as money. Tlie inheritance was destroyed to all intents and purposes, and the estate irrevocably converted into personalty, and so we must consider it for all the purposes of the will.
In some respects its meaning admits of no doubt. It directs the residuary fund to be divided among the residuary legatees, in proportion to the express legacies given to them respectively; the division being unequal. they take as tenants in common, and not as joint tenants. The rents and profits, during the lifetime of his son, until the maturity of James H. AVliite, are specifically •appropriated; the residuary fund is, therefore, a remainder, be'queathed to tenants in common, who were all alive and of full age at the death of the testator, and fully capable of taking the bequests.
The only lapse provided for in the will, is in case of any of the legatees, who were minors at tlie death of the testator, should die before twenty-one; their specific legacies shall fall into the residuum, and be paid to the residuary legatees, in the same proportions as before directed. This lapse is for their benefit, and as none other is expressly provided for, it is a strong indication of the intent of the testator, that there should be no other lapse in any event. The two events on which the division was to be made, are the arrival of James H. t^'kite to twenty-one, or the time when, if living, he would have attained that age, and the death of the testator’s son, both of which were certain to happen. If, therefore, there was any interest vested in the residuary legatees before the happening of these contingencies, it could not be defeated. This brings us to the main question, whether there was any such interest: in the consideration of which we shall refer to the general principles established in eases in equity, rather than to the cases themselves. It is not necessary to the vesting of a legacy, that it be capable of present enjoyment in possession; it is vested when the gift is immediate in interest, of a present right of enjoyment to a person capable of future reception in possession, on the happening of some event which is certain. It is contingent when the gift is prospective to a contingency, when no present right to future enjoyment is given, or given to a person who has not a present capacity to take and enjoy the thing given, let the contingency happen when it Aay. The present gift and the present capacity refer to the death of the testator, when the will takes effect. If the contingency is attached to the thing, or right given, or the person to take, the interest is contingent; if it is attached to the time when the thing or right is to be enjoyed, it is vested, the contingency referring merely to the payment or division. In the former case, it is in the nature of a condition precedent, which is the consideration of the gift; but in the latter, it is the mere postponement of payment of what is due by absolute right. This does not make the legacy contingent, unless the postponement arises from the situation of the legatee on account of the want of an existing present capacity to take and enjoy; or when the ascertainment of the person to take, is-referred to a future period, and the right to take depends on his being in esse at that time. Nor if the postponement is owing to-the situation of the estate or fund, out of which the legacy is to be paid, can the legacy on that account be held to be contingent. Vide 1 Eop. Leg. 37f> et seq., and cases cited. The words of this will, speaking at the death of the testator, are in proesenti. “I give and bequeath,” the gift is present and absolute,, the legatee is alive, and capable of taking and enjoying, the thing bequeathed was in existence, and must be enjoyed on certain events which attach to the distribution or payment only, and not to the right to the legacy. By the mode of distribution among the residuary legatees, the testator has referred to the special legacies, which are unquestionably vested in the adult legatees, and do not lapse by their death. As these legacies are made the standard of distribution among the residuary legatees, it is clear that the residuary fund should go to the-same persons who were entitled to the special legacies given to those who should die before they arrived at twenty-one. The surviving residuary legatees could not take the special legacies of the deceased adult legatees; if then we decree the residuary fund to the survivors, we make a rule of distribution among them incompatible with that prescribed in the will. In looking at its provisions, it is apparent that the object of the will, in postponing the payment, was for the convenience of the estate out of which the legacies are payable; it was to provide a fund from the rents and profits to meet specific purposes, without the least reference to-the situation of the residuary legatees. When these purposes were effected, the executors became their trustees as to the remainder bequeathed to them, the right to which in possession was consummated at the time fixed for distribution. This remainder was the capital of the fund created by the sale of the real estate; it was carefully reserved by the testator for the residuary legatees, who were his nearest relatives, and he could not have intended, that on the death of any of them, their shares should be taken from the next of kin, and go to strangers to-the deceased.
We are, therefore, clearly of opinion, that by the words of the will construed according to the best established rules, the residuary legatees had a vested right to their respective proportions of the residuary fund at the death of the testator, which, on the death of any of them before the time of payment, passed to their next of kin. Tide 1 Bop. 380, 304, 397, 430.
[365]*365In addition to the settled course of adjudications in courts of equity, we have also, in support of our opinion, the case of Fairly v. Kline, before referred to. In that case, the testator disposed of his personal estate among his wife and children, he devised his homestead plantation to his wife for life, or while she remained his widow; after her death or marriage, he directed it to be sold, and gave the proceeds thereof to his eight children, whom he named, to be equally divided among them, share and share alike. One of the children died before the death or marriage of the mother, or the sale of the land; and it was held, that her interest was vested, and on her death went to her representative, 2 Penning. [3 N. J. Law] 755. This case is entitled to great respect, on account of the character of the court which decided it; the more especially, as evidence of the law of New Jersey, in which state the testator was domiciled and resided at the time of his death. 1 Bin. 330.
Being then of opinion that the complainant is entitled to no part of the fund bequeathed to the deceased residuary legatees, our next inquiry is, whether any provision made for the son of the testator, can have any effect on the ease. It is admitted, that he never returned to this country, and died before the time when J. H. White could become of age. This is the very case contemplated by the testator, in which he directed the whole residuum to be distributed among the residuary legatees; this direction must be followed, if the legal effect of the limitation in favour of the son, does not prevent it. The first provision for the son, was the payment of an annuity of 300 dollars out of the rents and profits of the real estate, “if he should return home, and not otherwise;” this is clearly given on a condition precedent, and as the son never returned, was no charge on the estate or its proceeds. The next is a direction to sell the real estate; “and in ease of (his) son’s death, to carry the surplus, if any, to the residuary part of (his) estate; but if my son, Henry Harrison, should be living, and return home at or before J. W. White-arrives at the age. or in case of death, might have attained the age of twenty-one when such sale is to be made, to pay one half the amount of' such sale to the said H. H., as aforesaid, or to affix annuity for his support,” &c. This provision was made dependent on an act to be done by the son, in a definite time, which made its performance a condition precedent, and indispensable to the vesting of any right to the surplus; it has not been performed, and the events contemplated by the testator have both happened, on which a final and absolute distribution of the fund is directed. Neither of these provisions for the son affecting the disposition of the fund, it must be paid to the surviving residuary legatees, and the next of kin of those deceased, in the proportions of the special legacies to them respectively; the next, of kin taking by representation, the survivors per capita. The consequence is, that the complainants take nothing by their bill, and it must be dismissed.