Young v. Stoner , 1861 Pa. LEXIS 5 ( 1861 )

The opinion of the court was delivered by

Thompson, J.

— There was no discussion of the point whether the nephews of Jacob Young, deceased, took a vested remainder under his will after the expiration of the estate for years to his brother, or whether it was contingent. Indeed the signs were too unmistakeable that it was the former, to justify any attempt to prove it the latter. One of these was the absence of any devise over, and another the charge of money legacies on it to be paid by the devisees on coming into possession.

The law regards vested rather than contingent remainders, where they may be sustained by fair interpretation. Here the remainder was vested.

With this settled as a starting-point, we have but little difficulty in arriving at conclusions. The testator devises to his nephews, subject, of course, to the precedent devise for years in favour of his brother, “the before-mentioned real estate, subject to such payments” as should be “hereinafter mentioned.” Among them is the bequest in question: “ I will and bequeath, as soon as the sons of my brother John arrive at the age of twenty-one years, that they shall pay $3000 to the rest of my brothers and sisters, to have and to hold to them, their heirs and assigns for ever.” Although the time of payment is provided to be in futuro, yet the bequests are made a charge on the realty devised, which vested on the death of the testator, and thus the legacies became vested at the same time.

The time of payment is evidently for the benefit both of the estate and the devisees. In such cases legacies are vested: 1 Ross on Leg. 436, Hellman v. Hellman, 4 Rawle 440. See also as to vested legacies Price v. Watkins, 1 Dallas 8; Patterson v. Hawthorn, 12 S. & R. 112; Chew’s Appeal, decided at this term, and the authorities there cited, antes, p. 23.

The brothers and sisters were all living at the testator’s death, and there is no provision in the will to indicate an intent to devise over in case either of them should die before the period of payment, so as to disturb the vested character of the legacy as already stated.

The result is, therefore, the legacies being vested, the children of those who have become deceased since the testator’s death are entitled to the shares of their deceased parents, and consequently the judgment on the special verdict must be reversed.

Judgment reversed, and judgment is hereby entered for the plaintiff for the sum of $457.14, with costs, as per agreement of parties.