Mr.’ Justice NELSON.
This is an appeal from ¿ decree of the.Circuit Court of the Unites .States for the Bistrict of.Columbia.
The appeal is .from a decree of-'the court below, entered there .upon the going down of the' mandate of this court, in ■pursuance of its decision when the case was formerly here, on au appeal by the executor and trustee of the estate of Thomas Law, the settlement of which is the subject of litigation.
The case is reported in the'IT How., 417. This court reversed so much of the decree in the court below as gave to the grandchildren of the testator by Eliza, his daughter, wife- of Lloyd N. Rogers, an interest, under certain limitations, in the deed of marriage séttle'ment of the 19th March, 1796, amounting to the sum of $66,154 81, and affirmed the residue of said
decree. .This sum, by the decision, fell, of course, into the residuum of the estate of Law, for distribution among.the creditors, legatees, and distributees.
"When the case came again before the auditor appointed by the court below, several claims were presented for allowance, which were heard and examined by him, and his decision thereon reported to the court; and, after exceptions and argument, the report was confirmed. These several claims are now the subject of review by this court, upon the present appeal.
The first is á claim by Lloyd N. Rogers, as a creditor of the estate, and is founded upon an alleged loan of money to the testator, Law, as early as 1822. This claim was rejected by the auditor, upon the ground the proofs were not satisfactory that the loan had-ever been made by Rogers. The lapse of time, also,-since it was alleged to have been made, some thirty-three' years, without, for aught that appears, presenting it to the testator in his lifetime, or against the estate since his death, strongly confirms the .conclusion of. the auditor. We think the item was properly rejected.-
-The next claim is also by- Lloyd N. Rogers, as a creditor of the estate, and is founded upon a deed executed by Thomas Law,-the testator, and Eliza Parke Law., his wife, mu the 9th August, 1804,-to George Calvert and .Thomas Peter. The deed conveys to .the grantees all the-right and interest,-real or personal, of. Eliza P., the wife, and of. Thomas Law, the husband, in.right"of his wife, to which, she might or would be entitled from the estate of George Washington,’ or from the estate,‘of her father, John -Parke Oustis, in.trust, to convert the same into’ money, &c., &c., and to apply the interest or income of $10,000 to the sole usé of the said Eliza, P.scluring’ her lifetime. This sum was also made subject to her absolute disposition by wil], or,-in case of dying intestate, to be conveyed to her heirs; and, after deducting the $10,000 from the fund, to apply the rents, issues, and profits óf the residue to the sole use and benefit of the said Eliza P., jor and during her life, and, after her ..death, to pay the said incomé to Thomas Law, the husband, (if then living,) for and-during his life; and after the death of both, then to convey thé whole of the residue to
Eliza, the daughter. And then comes the covenant of Thomas Law, which, constitutes the .ground of the present claim. The said Thomas covenants, to and with the trustees, that whensoever the full amount and value of the funds shall be ascertained and known, which may or shall come to their (the trustees’) hands, in virtue of this ti’ust, and it can be thereby ascertained what sum shall be secured, to. come ultimately therefrom to his said daughter, Eliza, after the death of her father and- mother,'
that he will immediately thereupon secure to his said daughter a like sum,, to be paid to her out of his estate at the death of her said father and mother.
■ It wilL be seen by this deed that it was made the duty of the trustees, .as soon as practicable, and without sacrifice pf the interest of Mrs. Law in the estates of George "Washington, and her father, John Parke Custis, to convert the property into money, and invest the same in stock or other securities; and, after setting apart the sum of $10,000? assigned to her absolutely, the income of the residue was to be applied to her fot life, and, after her death, to the husband, if he survived, for life; and, at his death, the whole, principal and interest, to be transferred to Eliza, “the daughter. And it was this residue, thus ultimately to be transferred to her, which, when ascertained and known, the father covénanted immediately thereupon to secure to her a like sum, to be paid out of his estate at the death of both parents. The conversion of the residue of the estate thus limited, and ascertainment of the amount .of it in nioney or stocks or other securities, as prescribed in the deed', are, by the very terms of the covenant, a condition precedent to the-pbligation of the father to secure a like sum tó the daughter. An appraisal or valuation of this residue of Mrs. Law’s interest in the two estates will not answer the condition. The amount must be ascertained by a conversion of the property into money,(or its equivalent. This is not only the fair meaning of the terms of the covenant, but the obvious intent of the parties in the connection in which it is found.
This being, in. our. view, the true Construction of the covenant, it is only necessary to say, that there was no evidence before the auditor that its condition.had been complied with,
either in the lifetime of the. testator or since his death. We are of opinion, therefore, that the claim was properly rejected.
The third claim arises upon a codicil to the will of the testator, Thomas Law, which bequeaths to the three grandchildren, the children of his daughter Eliza by Lloyd N. Rogei's, $8,000 each, upon this express condition, that if the grandchildren, as heirs or devisees of their late grandmother, Mrs! Law, shall claim or demand, &e., any portion of his estate, rights, or credits, under or by virtue of certain indentures in the said codicil specially enumerated, then, and in that case, the bequest in the codicil to be .null and void.
The other legatees under the will of the testator object to the allowance of these three legacies, for the reason that the condition upon which they were to become null and void has happened, namely, a claim against the estate of the testator as heirs or representatives of their grandmother, Mrs. Law. The auditor, after stating the facts of the case as presented to him, and the question of law arising out of them, referred it to the court 'below for their direction..
The court held, that the sum of $32,585 76, which had been awarded to Lloyd N. Rogers,' as administrator of Eliza, his. wife, and which was claimed and allowed under one of the interdieted deeds, and which belonged to her children, as distributees, if laimed, or received by them, would be inconsistent with their right to the legacies according to the condition of the bequest, and by the decree gave the choice to the legatees to take the legacies under the will, or the distributive shares of the fund. The court were of opinión that no claim had yet been made for the distributive shares; but that, according to the true meaning of the bequest, the. legatees were not entitled to both funds, and that, for the purposes of the settlement of the estate, they should be put to their- election within a time mentioned.
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Mr.’ Justice NELSON.
This is an appeal from ¿ decree of the.Circuit Court of the Unites .States for the Bistrict of.Columbia.
The appeal is .from a decree of-'the court below, entered there .upon the going down of the' mandate of this court, in ■pursuance of its decision when the case was formerly here, on au appeal by the executor and trustee of the estate of Thomas Law, the settlement of which is the subject of litigation.
The case is reported in the'IT How., 417. This court reversed so much of the decree in the court below as gave to the grandchildren of the testator by Eliza, his daughter, wife- of Lloyd N. Rogers, an interest, under certain limitations, in the deed of marriage séttle'ment of the 19th March, 1796, amounting to the sum of $66,154 81, and affirmed the residue of said
decree. .This sum, by the decision, fell, of course, into the residuum of the estate of Law, for distribution among.the creditors, legatees, and distributees.
"When the case came again before the auditor appointed by the court below, several claims were presented for allowance, which were heard and examined by him, and his decision thereon reported to the court; and, after exceptions and argument, the report was confirmed. These several claims are now the subject of review by this court, upon the present appeal.
The first is á claim by Lloyd N. Rogers, as a creditor of the estate, and is founded upon an alleged loan of money to the testator, Law, as early as 1822. This claim was rejected by the auditor, upon the ground the proofs were not satisfactory that the loan had-ever been made by Rogers. The lapse of time, also,-since it was alleged to have been made, some thirty-three' years, without, for aught that appears, presenting it to the testator in his lifetime, or against the estate since his death, strongly confirms the .conclusion of. the auditor. We think the item was properly rejected.-
-The next claim is also by- Lloyd N. Rogers, as a creditor of the estate, and is founded upon a deed executed by Thomas Law,-the testator, and Eliza Parke Law., his wife, mu the 9th August, 1804,-to George Calvert and .Thomas Peter. The deed conveys to .the grantees all the-right and interest,-real or personal, of. Eliza P., the wife, and of. Thomas Law, the husband, in.right"of his wife, to which, she might or would be entitled from the estate of George Washington,’ or from the estate,‘of her father, John -Parke Oustis, in.trust, to convert the same into’ money, &c., &c., and to apply the interest or income of $10,000 to the sole usé of the said Eliza, P.scluring’ her lifetime. This sum was also made subject to her absolute disposition by wil], or,-in case of dying intestate, to be conveyed to her heirs; and, after deducting the $10,000 from the fund, to apply the rents, issues, and profits óf the residue to the sole use and benefit of the said Eliza P., jor and during her life, and, after her ..death, to pay the said incomé to Thomas Law, the husband, (if then living,) for and-during his life; and after the death of both, then to convey thé whole of the residue to
Eliza, the daughter. And then comes the covenant of Thomas Law, which, constitutes the .ground of the present claim. The said Thomas covenants, to and with the trustees, that whensoever the full amount and value of the funds shall be ascertained and known, which may or shall come to their (the trustees’) hands, in virtue of this ti’ust, and it can be thereby ascertained what sum shall be secured, to. come ultimately therefrom to his said daughter, Eliza, after the death of her father and- mother,'
that he will immediately thereupon secure to his said daughter a like sum,, to be paid to her out of his estate at the death of her said father and mother.
■ It wilL be seen by this deed that it was made the duty of the trustees, .as soon as practicable, and without sacrifice pf the interest of Mrs. Law in the estates of George "Washington, and her father, John Parke Custis, to convert the property into money, and invest the same in stock or other securities; and, after setting apart the sum of $10,000? assigned to her absolutely, the income of the residue was to be applied to her fot life, and, after her death, to the husband, if he survived, for life; and, at his death, the whole, principal and interest, to be transferred to Eliza, “the daughter. And it was this residue, thus ultimately to be transferred to her, which, when ascertained and known, the father covénanted immediately thereupon to secure to her a like sum, to be paid out of his estate at the death of both parents. The conversion of the residue of the estate thus limited, and ascertainment of the amount .of it in nioney or stocks or other securities, as prescribed in the deed', are, by the very terms of the covenant, a condition precedent to the-pbligation of the father to secure a like sum tó the daughter. An appraisal or valuation of this residue of Mrs. Law’s interest in the two estates will not answer the condition. The amount must be ascertained by a conversion of the property into money,(or its equivalent. This is not only the fair meaning of the terms of the covenant, but the obvious intent of the parties in the connection in which it is found.
This being, in. our. view, the true Construction of the covenant, it is only necessary to say, that there was no evidence before the auditor that its condition.had been complied with,
either in the lifetime of the. testator or since his death. We are of opinion, therefore, that the claim was properly rejected.
The third claim arises upon a codicil to the will of the testator, Thomas Law, which bequeaths to the three grandchildren, the children of his daughter Eliza by Lloyd N. Rogei's, $8,000 each, upon this express condition, that if the grandchildren, as heirs or devisees of their late grandmother, Mrs! Law, shall claim or demand, &e., any portion of his estate, rights, or credits, under or by virtue of certain indentures in the said codicil specially enumerated, then, and in that case, the bequest in the codicil to be .null and void.
The other legatees under the will of the testator object to the allowance of these three legacies, for the reason that the condition upon which they were to become null and void has happened, namely, a claim against the estate of the testator as heirs or representatives of their grandmother, Mrs. Law. The auditor, after stating the facts of the case as presented to him, and the question of law arising out of them, referred it to the court 'below for their direction..
The court held, that the sum of $32,585 76, which had been awarded to Lloyd N. Rogers,' as administrator of Eliza, his. wife, and which was claimed and allowed under one of the interdieted deeds, and which belonged to her children, as distributees, if laimed, or received by them, would be inconsistent with their right to the legacies according to the condition of the bequest, and by the decree gave the choice to the legatees to take the legacies under the will, or the distributive shares of the fund. The court were of opinión that no claim had yet been made for the distributive shares; but that, according to the true meaning of the bequest, the. legatees were not entitled to both funds, and that, for the purposes of the settlement of the estate, they should be put to their- election within a time mentioned. We are inclined to think, upon the facts in the case, a claim had already been made of the fund by the legatees and those representing them, which came from the estate .of the testator through their grandmother, under and by.virtue of one of the interdicted deeds, and which operated to annul the legacies; but, as the views of the court
below, and the decree in pursuance thereof, lead to the same result substantially; it is unnecessary to interfere with them.
The condition upon which the legacies were to fall is veiy specific and explicit': that “if the said children,” “or either of them,' or any person or persons on their behalf or account, or in behalf or on. account of either of them, as heir or heirs-at-law, of devisees or devisee of their grandmother,” “shall claim, ask, or demand, sue for, recover, or receive any part or portion of my estate, rights or credits, either in my lifetime or after my decease, under or by virtue of certain indentures —enumerating three — or under or by virtue of any other indenture,” “which the said Thomas Law and E. P. Law, or E. P.. Custis, meaning Mrs. Law, may have been parties, or to which any other person or persons with the said Thomas Law may have been parties for the benefit'of E. P. Law, or E. P. Custis, or her heirs; .then, and in that case, the bequest, &c., shall be null and void.”
Besides the distributive shares to the grandchildren, which the court-.below held as coming from one of the interdicted deeds, and inconsistent with the condition upon which the bequests or "the legacies were made, the two surviving grandchildren had set-up a claim in that court to an interest amount-' ing to the sum of $66,154 84, under the interdicted deeds of 1796,1800, and 1802, and which sum was awarded to them by the decree of the court. On an appeal to this court the decree was reversed, and the claim disallowed, as will be seen in the report of the case already referred to. We are of opinion this-claim and.litigation'were in Violation of the condition annexed to the "bequest of the legacies. The legatees are forbidden to claim, ask, demand, sue for, recover, or receive any portion of the. estate of the testator under these deeds, as the representatives of their grandmother.
■ .The testator in his will had stated his fears that he had set-tied upon the children of his daughter — these grandchildren —more than the other grandchildren would receive from his «state, unless his property should rise in value, in which case he would make another will. This impression, doubtless, led to the stringent condition annexed to the bequest in the codicil
which was executed nearly two years later. The condition is not put. upon the possession, recovery, or receipt of any portion of his estate under these deeds,; but upon a claim or demand, or suit for the same; and the testator directs, if the terms of the bequest are not acceptable to the grandchildren, that hi's executor shall contest with.them to the utmost their right to claim the legacies. It may well, we think, be doubted, if the judgment, of the court against their claim, under these deeds, after a long and expensive litigation, can save the legacies from a breach of the condition.. The very special terms of it would seem to have been intended to save the estate from any such litigation, so far as regarded the right to the. enjoyment of the legacies! ,
An. objection was taken, on the argument, to the legal effect and operation of. this'condition, but we entertain no. doubt as to its force and validity> The condition is lawful, and one which the testator had a right to annex in the disposition of his own property. .The legatees are not bound to accept the bequest, but,.if accepted5 it must be subject to the disabilities annexed; it must be taken
cum onere,
or not at all.
There are some oJther items'of minor importance, to which exceptions have been taken, but we see no well-grounded objection. to them.
The decree of the court below affirmed.