Moore v. Smith , 9 Watts 403 ( 1840 )

The opinion of the court was delivered by

Gibson, C. J.

The ruling principle of a case like this is, that where there is no' separate and antecedent gift which is independent of the direction and time for payment, the legacy is contingent; and it seems to be as well founded in reason, as’rules of interpretation usually are. Where a gift is only implied from a direction to pay, it is necessarily inseparable from the direction, and must partake of its quality; insomuch that if the one is future and contingent, so must the other be. The implication of the one is an accessory of the other, and it consequently follows the nature of its principal; whence it results that there can be no separate and independent legacy which is not given in express terms. The bequest, in this instance, is destitute of any expression separately indicative of an intent to give. “ And further,” says the testator, “ my exe-v cutors shall pay unto my grandson, John Moore, 100 pounds like money, as soon as he arrives to be twenty-one years of age;” from which, though it is not directly expressed, it must be inferred that a gift was intended, but subject to the contingency that the donee be living at the day of payment to receive it. There is no case exactly in point as to circumstances; but, in Balsford v. Kebbel, 3 Ves. 363, the principle is asserted in so many words. A testatrix, who bequeathed the produce of certain bank annuities betwixt her death and the arrival of the legatee at the age of thirty-two, directed her executors to transfer the annuities to him at that period; and it rvas held that the dividends were a distinct subject of bequest, and that there was no gift of the annuities but in the direction to pay, Avhieh attached itself to his person only at a particular age; consequently that the bequest of the annuities was contingent. In Mackel v. Winter, Ibid. 543, it was said that the distinction betwixt even prospective payment and a present gift, however signified, is an arbitrary one, unfounded in any legitimate principle of interpretation, and destitute of any peculiar claim to respect; and that, though it has been follorved as to legacies, it has never been extended to real estate. It was borrowed, however, from the ecclesiastical courts, for purposes of convenience if not of •necessity. It is a guide to certainty of result, where it is necessary, to choose betwixt suppositious intents in cases Avhere it is nearly certain that there was no intent at all; and it, therefore, frustrates the testator’s purpose as seldom as any other which could be employed. But the general rule, that the legacy shall be deemed vested or contingent just as the time shall appear to have been annexed to the gift or the payment of it, as well as the particular rule of interpretation to determine whether it was annexed to the one or the other, is established beyond controversy; and by an application of them to the case in hand, we find that the legacy Avas not vested in the legatee’s minority.

Judgment affirmed.