A legacy is said to be _vested_ when the right to it, either in the
present or in the future, is absolutely given to a person, and does not
depend upon the happening of some event. It is _contingent_, if the
payment of it is dependent upon the happening of some event; as, if a
person shall marry, or attain a certain age. The cases establish the
principle that contingent or executory interests, though they do not vest
in possession, may vest in right, so as to be transmissible to the
executors or the administrators of the party dying before the contingency
on which they depend takes effect; but where that contingency is the
endurance of life of the party till a particular period, the interest will
obviously be altogether extinguished by his death before that period.[125]
The general principle as to the lapse of legacies by the death of the
legatee may be stated to be, that if the legatee die before the testator's
decease, or before any other condition precedent to the vesting of the
legacy is performed, the legacy lapses, and is not payable to the
executors or the administrators of the legatee.[126] But this general rule
may be controlled by the manifest intention of the testator appearing upon
the face of the will, that the legacy shall not lapse, and by his
distinctly providing a substitute for the legatee dying in his lifetime.
The authorities appear to have settled that a testator may, if he thinks
fit, prevent a legacy from lapsing; though, in order to effect this
object, he must declare, either expressly or in terms from which his
intention can with sufficient clearness be collected, what person or
persons he intends to substitute for the legatee dying in his lifetime.
In ascertaining the intention of the testator, in this respect, the
courts of equity have established two positive rules of construction: 1.
That a bequest to a person _payable_, or _to be paid_, at or when he shall
attain twenty-one years of age, or at the end of any other certain
determinate time, confers on him a vested interest immediately on the
testator's death, as _debitum in præsenti solvendum in futuro_, and
transmissible to his executors or administrators; for the words _payable_,
or _to be paid_, are supposed to disannex the time from the gift of the
legacy, so as to leave the gift immediate, in the same manner, in respect
to its vesting, as if the bequest stood singly, and contained no mention
of time. 2. That if the words _payable_, or _to be paid_, are omitted, and
the legacies are given _at_ twenty-one, or _if_, _when_, _in case_, or
_provided_, the legatees attain twenty-one, or any other future definite
time, and make the legatee's right to depend on his being alive at the
time fixed for its payment, consequently, if the legatee happens to die
before that period arrives, his personal representatives will not be
entitled to the legacy.[127]
The application of this rule was well illustrated in the case of Patterson
v. Ellis,[128] and the doctrine discussed and maintained in an opinion by
Chief Justice Savage, in the Court of Errors, in New York. It was there
held, that where the gift of a legacy is absolute, and the time of payment
only postponed, as where the sum of $1,000 is given to A, to be paid when
he shall attain the age of twenty-one, the _time_ not being of the
substance of the gift postpones the payment, but not the vesting of the
legacy; and if the legatee die before the period specified, his
representatives are entitled to the money. But where the legacy is given
_when_ the legatee shall attain the age of twenty-one, or _provided_ he
attains that age, time is of the substance of the gift, and the legacy
does not vest until the contingency happens.
But even where the legacy is given _when_ the legatee attains the age of
twenty-one, if the devisor directs the _interest_ of the legacy to be
applied, in the meantime, for the benefit of the legatee, there being an
absolute gift of the _interest_, the principal will be deemed to have
vested.[129] The giving of interest before the payment has been considered
as evidence of an intention to vest the legacy. Hence, when a portion was
devised to a child with interest, but not to be paid or payable until the
child should attain twenty-one years, or be married, and the child died
under twenty-one, and unmarried, it was decreed that the portion should go
to the administrator of the child.[130]
The rule with respect to the vesting of legacies payable out of real
estate is somewhat different. It is this: Where the gift is immediate, but
payment is postponed until the legatee attains the age of twenty-one
years, or marries, there _it is contingent, and will fail if the legatee
dies before the time_ of payment arrives; but where the payment is
postponed in regard to the convenience of the person, and the
circumstances of the estate charged with the legacy--and not on account of
the age, condition, or circumstances of the legatee--in such a case it
will be vested, and must be paid, although the legatee should die before
the time of payment.[131]
The rule in question is always liable to the operation of the more general
and powerful rule, namely, that the intention of the testator, to be
gathered from the words of the will, must prevail.
As an illustration of the rule in regard to the vesting of legacies on
personal estate, the following is in point: A testator bequeathed to his
daughters the sum of £3,000, five per cent. navy annuities, and all the
dividends and proceeds arising therefrom, to be equally divided between
them, and all his estate at S, to be equally divided between them _when
they should arrive at twenty-four years of age_. One of his daughters died
before she attained the age of twenty-four years. The court was of opinion
that, according to the true rule of construction, the word _when_ could
not be otherwise considered than as denoting the _period of payment_, and
must not be deemed as a condition precedent upon which the legacy was to
vest, but merely postponing the payment of this £3,000, with the dividends
thereon, till twenty-four.[132]
A legacy of £30 was given to an infant to bind him an apprentice. The
infant died before he attained a proper age to be bound an apprentice. It
was decreed that this legacy was vested, and the infant being seventeen
years old, and having made a will, and named an executor, it was allowed
to be a good disposition of the £30.[133]
As to charging legacies on real estate, and observing the rule above laid
down, the following is in point:
T S, by will, gave his daughter £1,000, to be paid by his executor at her
age of twenty-one, or marriage, which should first happen, willing the
same to be raised out of the rents and profits of the lands; and further
willed, that in case his son should die before the age of twenty-one, or
without heirs of his body lawfully begotten, then from and after the death
of his son, he gave all his said lands, etc., to the defendant, he making
up his daughter's portion to £2,000; and the daughter died soon after the
testator's death, an infant, unmarried, upon which her mother took out
letters of administration and claimed the £2,000; it was decreed that she
was not entitled to any part of it, for it appears that the intention of
the testator was that it should be for a portion, and it is expressly
called a portion in the will; it is no personal legacy, but money to be
raised out of the rents and profits of lands, and the payment is expressly
to be at twenty-one years, or marriage.[134]