Furness v. Fox , 55 Mass. 134 ( 1848 )

Metcalf, J.

The sole question raised by these exceptions is, whether the legacy to the defendant’s ward was vested or contingent. The testator’s words were these : “ I give and bequeath to my grandson, John W. Furness son of my son John C. Furness deceased five hundred dollars, if he shall arrive to the age of twenty-one years, then to be paid over to him by my executor.” The rule on this subject is plainly stated in many judicial opinions and elementary books, and the only difficulty is in a right application of it to particular cases. In 3 Wooddeson, 512, the rule is well expressed, as follows : “ If the time of payment merely be postponed, and it appear to be the intention of the testator that his bounty should immediately attach, the legacy is of the vested kind; but if the time be annexed to the substance of the gift, as a condition precedent, it is contingent, and not transmissible.” See also Godolphin, Part III. c. 17, <§> 11; 1 Roper on Leg. c. 10, § 2. We have, therefore, only to inquire whether, in the case before us, the words, “if he shall arrive to the age of twenty-one years,” relate to the words which precede, or to the words which follow them ; or, in other language, whether the arrival of the legatee at the age of twenty-one years is a condition precedent to the gift of the money, or only to the payment of it into his hands. And we are of opinion that the testator meant to make an immediate bequest to the grandson, as the representative of his deceased father, but that the money should not go into his hands, during his minority. This seems to us to be the most natural construction of the mere words of the bequest, although the testator’s meaning is obscured by the unfortunate collocation of those words, and the inartificial punctuation of the sentence. We are somewhat confirmed in this construction by the only other devising clause in the testator’s will. After the bequest to his grandson, he gave all the residue and remainder of his property to his five children who were then alive, to be equally divided among them, without any limitation over, by express mention, of the five hundred dollars, in the event of his grandson’s dying under age. It is true that this residuary clause would have passed to the five children the money bequeathed to the grandson, if the legacy to him had failed of effect; but it is hardly probable that the testator knew that such would be its legal operation.

The exceptions do not show who is entitled to the money in question, since the decease of the legatee; but they do show that the plaintiff, as execútor, has no claim to it.

JVew trial ordered.