Brown v. Brown , 44 N.H. 281 ( 1860 )

Bellows, J.

The bequest being to the grandson of the testator, to be paid to him when he should attain the age of twenty-one years, and the legatee having died before that age, the question is whether his interest was vested or contingent.

is well settled that where the words of the bequest, which look to the future, apply to the substance of the gift, the vesting is suspended; but if they appear to relate merely to the time of payment, the legacy vests at once upon the death of the testator. In determining how this is, there is often great difficulty in ascertaining the will of the testator; but it appears to be an established rule-of construction, that if the bequest be of a sum of money to the legatee, “at the age of twenty-one years,” or, “if or provided he-arrive at that age,” then the interest is contingent, unless these terms are controlled by other parts of the will, such as a provision for the payment of the interest, in the mean time, to the legatee. On the contrary, where the gift is of a sum of money to the- legatee, “payable,” or “to be paid” at the age of twenty-one, the legacy vests immediately, and, upon the legatee’s death before that age, goes to his representative; and this is upon the ground that the testator intended the gift to be absolute, but chose to postpone the payment to a period when the legatee might better make use of his bounty^/

This distinction is established by a weight of authority too great to be shaken, and it may well be supposed that wills are made with reference to it, and it is decisive of the case before us. Among the numerous authorities to this point are, 1 Jarman on Wills 760, and eases cited; Boraston’s Case, 3 Co. 19; Hayward v. Wistby, 1 Burr. 228; Ackerly v. Wheeler, 1 P. Wms. 783; Nichols v. Osborne, 2 P. Wms. 418; Harvey v. Harvey, 2 P. Wms. 22, and note; Heath v. Perry, 3 Atk. 101; Inchedon v. Northcate, 3 Atk. 438; Healey v. Greenbank, 3 Atk. 716 ; Anon., 2 Vern. 199 ; Cloberry v. Lampsen, 2 Freem. 24; Smell v. Dee, 2 Salk. 415; Boe v. Lee, 3 T. R. 41; Cricket v. Dolby, 3 Ves. Jr. 10, and note, p. 17; May v. Wood, 3 Ves. 399, and notes; Booth v. Booth, 4 Ves. 399, and notes a, and 3 ; Hanson v. Graham, 6 Ves. 239 ; Shattuck v. Stedman, 2 Pick. 469; Furness v. Fox, 1 Cush. 134; Felton v. Sawyer, 41 N. H. 211. There must therefore be

A decree for the plaintiff.