Allen v. Whitaker , 34 Ga. 6 ( 1864 )

Lyon, J.

The only question in this case depends upon the construction to be given to the 11th item of William Allen’s will, which item is as follows :

“ I give and bequeath to my beloved grand-daughter, Alvira A. C. Allen, one negro girl Mary and her increase, at the death of my wife, or when she marries or becomes twenty-one years of age, to her and her heirs forever.”

The legate died before the happening of either contingency.

Did this legacy create a vested, or a contingent interest depending upon the happening of one of the three contingencies ?

The rule in such cases, as stated in 2 Fecorne on Fern., sec. 285, is this : “ Where real or personal estate is devised Or bequeathed to a person when, or as soon as he shall attain a given age, or when an event shall happen, which may never occur at all, or at, or ujoon, or from and. after his attaining such age, or the happening of such event, and there are no other words indicative of an intent to confer a vested interest, and nothing in the form of the limitation itself, to indicate an intent merely to delay the vesting in possession or enj oyment, and no disposition of the intermediate income; in such case the interest of the devisee, or legatee, will be contingent until he attains the age specified, or the event described has happened. Eor, although in this case the person is ascertained, yet the property is only given to him at a future period, which may nqver arrive; and the gift can no more attach upon him before that period than if the testator, continuing to live, were to defer to make any devise or bequest till such period had actually arrived.” The cases referred to in support of the principle thus stated are Onslow vs. South, 1 Eq. ca. ab. 295 pl.6. Cruse vs Barly 3 P. W. 20. 1 Roper Leg. 489. Judd vs. Judd, 3 Sim. 525. Hunter vs. Judd, 4 Sim. 455.

“ A leading distinction,” says 1 Jar. on Wills, 760, “ is, that if futurity is annexed to the substance of the gift, the vesting is suspended ; but if it appears to relate to the time of payment only, the legacy vests instanter.” If the words “ payable” or “to be paid” are omitted, and the legacy is given at twenty-one, or if, when, i/n case, or provided, the legatee attains twenty-one, or any other future definite period, this confers on him a contingent interest, which depends upon its vesting and its transmissibility to his representatives, on his being alive at the time specified.” — Perkins, note 21 to above text from Jarman, and cases cited. This principle has been fully recognized by this Court in the cases of Cogburn vs. Ogleby, 18 Geo. 58; Bowman vs. Long, 23 Geo. 242.

The gift in this case is “ at the death of” testator’s wife, or vchen she marries or becomes twenty-one years of age. It is to take effect in the future, and not in presentí. It is not the possession or enjoyment merely of the property that is postponed, but the gift itself. There is no limitation over, no trustee appointed to take charge of the property in the interim; no appropriation to her use of the income, and, in fact, nothing that the Court can lay hold of, to indicate an intention on the part of testator that the legacy should bo more than he has made it, a contingent interest depending-upon the legatee’s being in life at the happening of some one of the specified contingencies. Having died before the happening of any one of these, she had nothing in the bequest to transmit to her representatives.