Phillips v. Phillips

By the Court.

Bennies, J.

delivering the opinion.

[1.] The question in this case depends upon the question, whether the remainders vested in the remainder-men, at the death of the testator ? If they did, it was not disputed that the “increase” of the remainder-negroes went with those negroes; and so, could not pass under the residuary clause. This was the clause- under which the complainants claimed.

In Boraston’s ease, which, in principle, was not unlike this, the decision was, that the remainder vested at the death of the testator.

That case, as correctly stated in Roper on Legacies, was as follows: “ the devise was to a man and his wife for eight years ; and after that term, the lands were to remain to the executors of the devisor, until such time as Hugh Boraston should accomplish his full age of twenty-one — the mesne profits to be 'employed by the executors towards the performanee of the testator’s will; and when the legatee should attain twenty-one, then that he should enjoy the estate to him and his heirs. Hugh Boraston died under twenty-one, and the Court of King’s Bench determined that the remainder vested in him at the death of the devisor, with a postponement of the enjoyment until Hugh completed the age of twenty-one.” (1 Rop. Leg. 398. 3 Coke, 19.)

This case has been followed by a great number of others, which may be found stated in 1 Rop. Leg. 393, et seq.; Jarm. Wills, 734, et seq.; Cruise’s Dig. Tit. XVI.Remainder, ch. 1, s. 75, et seq.

See, too, Holcombe vs. Tuffts and another, (7 Ga. R. 535.)

We think, therefore, that the remainders in this case were remainders which vested in the remainder-men at the death of the testator.

Consequently, we must affirm the judgment of the Court below.