Marr, Ox'x v. M'Cullough , 6 Port. 507 ( 1838 )

COLLIER, C. J.

The questions arising in this case are—

First. Does the bequest of one thousand dollars by the will of John Spencer, senior, to Ms executors in trust, to be paid to the intestate of the defendant in error, when the executors “ shall be thoroughly satisfied that he will prudently manage the same,” with the direction of the payment annually of interest thereon, in the meantime, pass a vested legacy 1

Second. Does the proof in the cause establish a payment by the plaintiff’s testator to the defendant’s intestate in his lifetime. If it does, can the defendant coerce a second payment, though the legacy had vested in his intestate ?

1. If a legacy be given generally, -without appointing the time for its payment, it vests immediately upon the testator’s death, though it be not deman dable until the expiration of the period defined by law, after the grant of letters testamentary. It is an interest in proesenti solvendum in futuro, and if the legatee die before he is allowed to adopt coercive measures with a view to its recovery, yet his personal representative will be entitled ■ to the legacy. But when a period beyond the testator’s death, is prescribed by the will for the payment of the legacy, it often becomes a perplexing question whether it is vested or contingent, in the solution of this question, as in all others, arising upon the construction of wills, the intention of the testator exerts a controlling influence, when it is possible to be known by the aid of those rules which áre established by law for its ascertainment. The construction of a will being settled, it may be laid down that the legacy will be vested, if the testator annexed tirria to the payment only; but if to the gift, then it will be contingent. And where contingent, no interest will pass to the executors or administrators of the. legatee, if he dies before the period arrives for the legacy to vest.

It may be remarked, that the rule which considers a legacy as vested, where given in terms immediate, and the payment alone postponed, is itself subject to exceptions. Among these, may he enumerated the cases where it appears from a construction of the whole will, that the testator intended that the legacy should not vest until the time when it was to be paid, and where the event, upon which its payment is directed, is uncertain as to its taking place — upon the maxim, dies imertus in testamento condiiionem facit. But this latter exception, will not apply in all cases where the event upon which the payment of a legacy is directed, is uncertain, and always gives place to the meaning of the testator, where it appears from a view of the entire will, that he did not intend to make the legacy conditional.

And it has been often held, that the gift of a legacy, to he paid upon a future uncertain event, with the direction to pay to the legatee, the interest accruing in the meantime, sufficiently indicates that it was net the testators intention to make the legacy conditional.

In Fonereau vs. Fonereau,^* there appeared to have been, a devise of one thousand pounds to an infant, which the testator authorised his executors to lay out on such securities as they should see fit, and the interests or income thereof, to be applied towards the education of the legatee as they should think proper, and also to apply a part of the principal to put him apprentice, and the remainder to be paid him when he shall have attained his age of twenty -live, and not before. The Lord. Chancellor, among other things, said: “It is true, there is a distinction, where a legacy is given to one at his age of twenty-one= — ti: ere it is not vested: this distinction now is absolutely settled. But there are eases, where, when a testator gives interest in the meantime, he gives a property in the principal, unless something arises on the face of the will, to take off the force of it.”. And it was holden that the legacy vested, and the securities were directed to be transferred to the representatives of the legates — he having died before he “ attained his age of twenty-five.”

In Booth vs. Booth,^* the testator having devised and bequeathed the larger portion of his real estate, “ gave all the residue of his estate and effects, which should remain after paying his debts, &c.” to certain trustees, “ then executors, &c. upon -trust, as soon after his decease as conveniently might be, to collect and get in the same,'and invest the same from time to time in some of the public funds, &c., and upon trust, pay the dividends and produce thereof, as the same should from time to time become due, equally to his grand nieces, &c. until their respective marriages, and from and immediately after their respective marriages, to assign and transfer their respective moieties or shares thereof, unto them respectively.” One of the legatees being dead without ever having been married, it became material to ascertain whether the legacies vested. The Master of the Rolls, decided that the legacies to the grand-nieces vested, upon the grounds that the dividends and produce were required to be paid, previous to the marriages of either, and for the additional reason, that they were the bequest of a residue; and thereupon directed the moiety of the deceased legatee to he paid to her executor. So in Monkhouse vs. Holmes,^* one of the principal questions discussed was, whether a bequest to trustees of eight hundred pounds, to pay the interest to the testator’s wife for life, and then in parts and shares to legatees designated by the will, gave a vested interest to the several legatees. Lord Loughborough considered that the form of the bequest clearly indicated the intention of the testator not to annex time to the substance of the gift, but only to its payment. It may be remarked generally, that if the day is certain when a legacy is to be paid, the legacy is vested, “ but where uncertain, the true question will be, whether it is in the nature of a condition.” If it be a condition, time is annexed to the substance of the gift, and the legacy does not vest, until the arrival of the appointed period, or the happening of the event. In the case last noticed, Cloberry's case^† is cited, in which Lord Nottingham said, “ the giving interest shews no contingent legacy was intended.”

This doctrine was elaborately considered in Paterson vs. Ellis' ex'rs,^‡ by the Court of errors of New York; and it was there determined, that where the gift of a legacy is absolute, and the time of payment only postponed, as where a sum of money is given to be paid to the legatee when he shall attain a certain age, time not being of the substance of the gift, postpones the payment, but not the vesting of the legacy; and if the legatee die before the period appointed, his representatives are entitled to the money. But where the legacy is given when the legatee shall attain, or provided he does attain the age prescribed, time is of the substance of the gift, and the legacy does not vest until the contingency happens. And even where the legacy is given whent\\é legatee attains a certain age, if the testator directs the interest of the legacy to be applied in the meantime for

the benefit of the legatee, there being an absolute gift of the interest, the principal will he deemed to have vested. So the legacy will be deemed to have vested, if the trustee he invested with a discretion to pay it before the time specified in the will. Without noticing more particularly the great number of authorities, upon the application of this exception to the maxim of dies incerius in testamento conditionem facit, we shall content ourselves merely with a reference to some of them. Collins vs. Metcalfe^**—Stapleton vs. Cheele^†—Hoath vs. Hoath^‡ — Walcott vs. Hall^§—Dodson vs. Hay^ǁ—Hanson vs. Graham^¶—Lane vs. Goudge^**—Leake vs. Robinson^††—Jones vs. Mackelvain^‡‡—Livesey vs. Livesey^§§—Pulsford vs. Hunter^ǁǁ—Vawdly vs. Geddes^¶¶—Butler's note to Fearne Cont. Rem. 553—Green vs. Pigot^***—May vs. Wood^†††—Cave vs. Cave^‡‡‡ -Van vs. Clark^§§§—Piercy vs. Roberts^ǁǁǁ. But it has been said the gift of the accruing interest, or a direction to apply it for the benefit of the legatee, will not vest the legacy, if the amount given for maintenance be not co-extensive with the whole amount of the interest, or if it be, to be paid out of another fund.^¶¶¶ It has been also said that where legacies are given out of real'estate, the gift of interest immediately will not have the effect to vest the legacy.—Prouse vs. Abingdon^****—Smith vs. Smith^††††—Pearce vs. Lowman^‡‡‡‡ —Watkins vs. Cheek^§§§§—Carter vs. Bletsoe^ǁǁǁǁ—Hubert vs. Parsons^¶¶¶¶—Paterson vs. Ellis' ex'rs.^***** And it has been determined that where a testator made a bequest of legacies to infants when they should attain the age of twenty-one years, and appointed a trustee during their minori ty, tlic appointment of a trustee, indicated the testator’s intention, that the legacy should vest, “ as there could not be a trustee of nothing” — Branstrom vs. Wilkinson^* —Paterson vs. Ellis.^† But we do not feel ourselves called on to consider these several questions here, as in the case before us, there is a direction to pay the entire interest of a 'personal legacy, which sufficiently manifests the testator’s intention, that the legacy should vest.

In the construction of wills, we have already said that the testator’s intention, where consistent with the law, must prevail. Now as the intention is only implied, that a legacy shah vest, from the direction to pay interest until the principal is due, — if from a view of the whole will, it appears that the testator intended to make the interest a subject of the bequest, until some future period, and the principal is then for the first time to be taken out from the residue of his estate and paid to the legatee, it is clear that the legacy does not vest. “Because the gift and the payment of it are one and the same, and it was the intention of the testator to make the gift of the interest and the capital separate and distinct, so as to constitute the time appointed for payment of the principal, the very essence of the gift of it.”^‡ But if no intention can be gathered from the will, to countervail the legal inference, that the gift of the interest vests the principal, the representatives of the legatee will always be entitled. In the present case, the corpus of the legacy was given to the executors as trustees, with a postponement of the payment to an indefinite period, depending upon a careful and honest exercise of their discretion. The legacy then, not only upon the authority of precedent, but upon principle also, vested in the defendant’s intestate, immediately on the death of John Spencer, the testator.

2. it is sufficiently shewn by the proof, that the testator of the plaintiff in error, paid to the defendant’s intestate the entire amount of his legacy, either in money or in something else esteemed by him as an equivalent, and obtained his receipt in full, after the rendition of the decree by the judge of the County court. And the only question remaining to be considered, is, whether such payment was a legal satisfaction of the legacy. The defendant in error cannot occupy a more favorable position than his intestate did while living, so as to enable him to urge an objection to the payment, which would not have been available, if made by the intestate himself. It might be granted, that the plaintiff’s testator did not exercise his discretion with wisdom or even in good faith, in paying to the intestate his legacy, and yet the defendant is not entitled to recover, if there was a satisfaction in point of fact. The intestate could not have been heard to allege his incapacity to manage his own affairs with prudence, as a reason why his legacy was unsatisfied: to have entertained such an objection, would be to allow one to profit by his own wrong. The legacy then, having vested in the intestate of the defendant, it was competent for him either to have released it, or to have received it in possession — and it appearing from the proof, that it was fully paid to him, there was no interest left to be transmitted to his administrator, by the grant of administration: and as the death of the legatee could not revive the charge against the plaintiff, it follows, that the defendant has no cause of complaint against her.

The decree of the Circuit court is therefore reversed; and this court rendering such decree as should have been rendered by the Circuit court, doth order, &c. the bill to be dismissed, and the costs of this court and the court below, to be paid by the defendant in error.

* 3 Aik. 645.

* 4 Ves. R. 400.

* 1 Vern. 462.

† 2 Vera. 673.

‡ 2 Bro. Ch. R. 4.

§ Ibici, 305.

ǁ Ibid, 404.

¶ 6 Ves. 239.

** 9 Ves. 229.

†† 2 Meriv. 386.

‡‡ 1 Russ. Ch. R. 220.

§§ 3 Cond. Ch. R. 399.

ǁǁ 3 Bro. Ch. R. 416.

¶¶ 4 Cond. Ch. R. 389.

*** 1 Bro. Ch. R. 104-5.

††† 3 Bro. Ch. R. 471.

‡‡‡ 2 Vern. 508.

§§§ 1 Atk. 510.

ǁǁǁ 6 Cond. Ch. R. 469.

¶¶¶ Bro.Ch. R. 416; 6 Ves. 249; 2 Medv. 386-7; 4 Cond. Ch. R. 389; 1 Roper’s Leg. 497.

**** 1 Atk. 482.

†††† 2 Vern. 92.

‡‡‡‡ 3 Ves. 135.

§§§§ 1 Cond. Ch. R. 416.

ǁǁǁǁ 2 Vern. 617.

¶¶¶¶ 2 Ves. 262.

***** 11 Wend. R. 272; see also 1 Atk. 512-556.

* 1 Bro. Ch. R. 298.

† 2 Vent. 342.

‡ 11 Wend. R. 259.

* 7 Ves. 422.

† 11 Wend. R. 274.

‡ 1 Roper’s Leg. 500; 3 Yes. 363; 12 Ves. 75; 3 Atk. 219; 2 Meriv. 3G3.