Farley v. Gilmer , 12 Ala. 141 ( 1847 )

ORMOND, J.

The question to be determined, upon the fifth, clause of the will, is, whether the interest vested in the son immediately, at the death of his father, to be enjoyed after the death of his mother, or, whether his right to the property depended upon the contingency of his surviving his mother.

We think it does not admit of reasonable doubt, that it was intended the estate should vest immediately in the son, as an executory devise. This is a question of intention, to be gathered from the language employed in the particular bequest, subject to be controlled by other parts of the will, showing a contrary intention. There is nothing in the language employed in this case, indicative of an intention to postpone the vesting of this legacy, until the death of the tenant for life. “At her decease, to be left to my son,” &c. is equivalent to saying, at her decease, I give the estate to my son, or remainder to my son, which would clearly give a vested interest in the remainder.

The general rule is in favor of the vesting of legacies, and this rule will prevail, unless a clear intention is shown on the will, that it shall not vest until the happening of the contingency; and in the language of Lord Eldon, in Gaskell v. Harman, 11 Vesey, 498, the court will not conjecture in favor of an intention, against the general rule.

This question generally arises in money bequests, payable at a future period, and the legacy will vest immediately, or bé contingent, according as the intention is ascertained to be, to make an immediate gift, and to postpone the enjoyment for a particular period, or until the happening of some future event, and, where there is no gift, distinct from the time of payment. [Fonnerean v. Fonnerean, 3 Atk. 645; Jackson v. Jackson, 1 Vesey, sr. 217; and see the cases collected on this head in Roper on Legacies, 375.]

But these rules, applicable to money legacies, have no application when the same words are applied to k devise of freehold estate. A devise of freehold estate to A, when he shall attain twenty-one years, will vest immediately in A, whether the devise be immediate, or only in remainder— [Doe v. Moore, 14 East, 601; Mackin v. Reynolds, 3 Brod. & Bing. 121] — although the same language, applied to a money legacy, would not create a vested interest, until the contingency happened. The intention of the testator here, was to convey his lands to his son, and although that has failed from the want of the necessary number of witnesses, it is nevertheless clearly indicative of his intention.

This intention, so far from being controlled by the residue of the will, is strongly confirmed by it. We find him leaving specific legacies to the rest of his children, for whom he had not previously provided, and no doubt can be entertained, that he did not intend to die intestate, as to any portion of his property, although from the defective execution of the will, it became inoperative to convey the lands. [McLemore v. McLemore, 3 Ala. 687; McLeod v. McDaniel and wife, 6 Id. 236.]

The decree of the orphans’ court must be affirmed.