was not, therefore, the same reason for applying this rule to that description of legacies; and, as it appeared contrary to the favor which the law shows to the owner of the inheritance, courts of equity rejected it as a general rule in respect to all such legacies (m).

The leading case generally referred to as establishing this distinction, is Poulet v. Poulet, or Pawlett v. Pawlett (n): There Lord Pawlett settled by deed real property in trustees for a term of years in remainder after his death, upon trust, after payment of his debts, to pay such sums of money and maintenance for younger children as his lordship should appoint by will; and in default of appointment to raise 4,000l. apiece for each such child, payable at twenty-one or marriage, with maintenance in the intermediate time: Lord Pawlett appointed by will to his two daughters, and only younger children, Susanna and Vere, 4,000l. each, to be raised and paid in money, and at the times, and with the maintenance prescribed by the deed: Both daughters survived him: But Vere died under age, and unmarried, before any part of her portion could be raised; and her mother was her administratrix, who claimed her portion: The question was, whether such claim could be supported, as Vere died under twentyone, and unmarried: And the Lord Keeper determined in the negative; observing that "the portion was to come wholly out of the lands, and the personal estate no way subjected or made liable to the payment of it by the Will."

The rule of law laid down in the case of Pawlett v. Pawlett has been adopted in a numerous series of cases (o), *and in conformity with the principle of it, it has been further decided, that a gift of interest until the legacy becomes due will not vest the principal, when

(m) Fearne, Cont. Rem. 555, note by Mr. Butler.

(n) 2 Ventr. 366. 1 Vern. 204, 321. (0) Smith v. Smith, 2 Vern. 92. Yates v. Phettiplace, 2 Vern. 416. S. C. Prec. Chanc. 140. Reynish v. Martin, 3 Atk. 335. Jennings v. Looks, 2 P. Wms. 276. Duke of Chandos v. Talbot, 2 P. Wms. 610. Prowse v. Abingdon, 1 Atk. 485. Harrison v. Naylor, 3 Bro. C. C. 108. Parker v. Hodgson, 1 Dr. & Sm. 568, and the authorities cited in the arguments and judgment in that case. The rule is not

to be applied to legacies given out of moneys to arise from the sale of land Re Hart's Trusts, 3 De G. & J. 195, nor to legacies given out of a mixed fund consisting of the proceeds of the sale of real estate directed to be sold, and pure personal estate. Lloyd v. Lloyd, 2 Sim. (N. S.) 255. Bellairs v. Bellairs, L. R. 18 Eq. 510, 517. The proceeds of realty and personalty directed to be applied to the same object are, it would seem, a mixed fund, to which the rules applicable to personalty apply. Genery v. Fitzgerald, Jac. 468.

the legacy is charged on land; but if the legatee dies before time of payment, the legacy is lost (p).

But a difference observable in the apparent motives for the postponement of legacies, has given rise to an extensive exception from this general rule respecting the vesting of legacies charged on land. Thus when a legacy is bequeathed to a child on its attaining twentyone, or marrying, or on any other event personal to him, the legacy is evidently postponed to the time specified, from its being considered that the legatee will then want the benefit of the legacy; whereas when the estate is devised to a person for life, and after his decease is charged with a legacy, the legacy is evidently postponed till the decease of the devisee for life, from its being incompatible with his life estate, that it should be raised in his lifetime.24 The payment of the legacy is therefore considered to be postponed, in the first case from regard to circumstances personal to the legatee; and in the second from regard to the circumstances of the estate; and it has been inferred, that in cases of the first description, the testator does not intend the legatee shall receive the legacy, unless the circumstance happens on which the *testator made it payable; and that in cases of the second description, the testator intends the legatee shall receive it at all events. In the former cases, therefore, it has been held, that if the legatee dies while the time of payment is in suspense, the

(p) Gawler v. Standewick,'1 Bro. C. C. 106, in a note to Green v. Pigot.

24. Where the legacy is a charge on the land, it may be added that 'the true rule with respect to the vesting of legacies payable out of real estate is this where the gift is immediate but the payment is postponed until the legatee, for instance, attains the age of twentyone 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 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." McCoun, V.-C., in Marsh v. Wheeler, 2

Edw. 156. And, to the same effect, see the remarks of Judge Huston, in Donner's Appeal, 2 Watts & S. 372, where

he says: If the time of payment is postponed not because of the minority of the legatees, but for the benefit of the estate or of the devisee of the land, the legacy does not sink or merge in the land." See too, Willis v. Roberts, 48 Me. 257; Birdsall v. Hewlett, 1 Paige 32; Lyman v. Vanderspiegel, 1 Aiken, 275. Where the legacy is to be paid out of the proceeds of certain real estate at the expiration of a certain lease, it will not lapse on account of the death of the legatee before the expiration of the lease. Selby v. Morgan, 6 Munf. 156. And where the legacy is merely in confirmation of a prior parol gift, it will not lapse. Woods Woods, 2 Jones Eq. 420.

[*1120]

v.

legacy sinks into the land for the benefit of the inheritance; and in the latter cases it has been held, that if the legatee dies during the continuance of the preceding estate or interest, his personal representatives will be entitled, on its determination, to have the legacy raised for their benefit (q).

The case of King v. Withers (r), which there has already been occasion to state, is the leading case by which this exception has been established, as to the vesting of legacies payable out of the real estate at a future time and the principle of that decision has been adopted in a multitude of subsequent cases (s).

:

So 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 (t).

It must be further observed, with respect to this general rule, that it may clearly be controlled by a direction in the *will that the legacy should vest on the testator's death: Thus in the case of Brown v. Wooler (u), the testator gave legacies charged on his real estate to his two daughters, "the same to vest in them immediately on my death, but to be paid on their attaining the ages of twenty-one years, and the interest thereof in the meantime to be applied to their maintenance and education:" The daughters both died infants; and it was contended, that the legacies, as against the real estate, must sink for the benefit of the devisee, but Sir John Leach, V.-C., held, that this was prevented by the express direction that the legacies should vest on the death of the testator: and, therefore, that the personal representatives of the daughters were entitled to the legacies.

(9) Fearne, Cont. Rem. 557, note by Mr. Butler.

(r) Cas. temp. Talb. 116, ante, p. *771. (8) Godwin v. Munday, 1 Bro. Chanc. Cas. 191, and the cases in the notes thereto. Hutchins v. Foy, Com. Rep. 716, 723. Lowther v. Condon, 2 Atk. 128. Emes v. Hancock, 2 Atk. 507. Sherman v. Collins, 3 Atk. 319. Hodgson v. Rawson, 1 Ves. Sen. 44. Tunstall v. Brachan, Ambl. 167. S. C. 1 Bro. C. C. 124, note to Dawson v. Killett. Embrey v. Martin, Ambl. 230. Manning v. Herbert, Ambl. 575. Jeale v. Titckener, Ambl. 703. S. C. 1 Bro. C. C. 120, in a note. Clark v. Ross,

4. Of the lapse of legacies charged on a mixed fund of realty and

personalty.

It sometimes happens that legacies are charged on a mixed fund, that is, both on real and personal estate: In that case, the personal estate is considered to be the primary fund, and the real estate to be the auxiliary fund for the payment of the legacies (2). So far as the personal fund will extend to pay them, the case is governed by the same rules as if the legacies were payable out of personal estate only; and so far as the real estate must be resorted to for the payment of the legacies, the case is governed by the same rules as if they were charged on the real estate only (y).

tator's declaring

be vested at a

In concluding the general inquiry into the doctrines by which it is ascertainable whether the legacies are vested or contin- Effect of the tes gent, it may be proper to consider the question which that a legacy arises on wills in which the testator expressly declares shall or shall not that the legacies given by it shall or shall not be vested particular period. at or until a particular period. In such cases the word "vested " has been frequently construed in a sense different from its strictly legal meaning. Thus it has been sometimes regarded as meaning "transmissible" (z), sometimes as meaning "vesting in possession" (a), or "payable" (b): sometimes as meaning "indefeasible" (c). But the distinct and definite meaning which the word legally bears must be attributed to it in construing the will in which it is contained, unless there is evidence from the context that the testator did not mean to affix that meaning to the expression (d).

(z) See post, p. *1561.

(y) Fearne, Cont. Rem. 557, note by Butler. Chandos r. Talbot, 2 P. Wms. 601. Prowse v. Abingdon, 1 Atk. 482. Re Hudson's Trusts, 1 Dru. 6, t. Sugden, C. of Ireland.

(2) Taylor v. Frobisher, 5 De G. & Sm. 191, 198.

(a) King v. Cullen, 2 De G. & Sm. 252. Simpson v. Peach, L. R. 16 Eq. 208. So the word "entitled" may mean entitled in possession," i. e., entitled to payment: Jopp v. Wood, 28 Beav. 53; affirmed, 2 De Gex, J. & Sm. 323. Umbers v. Jaggard, L. R. 9 Eq. 200. Re Noyce, 31 C. D. 75. See Greenhalgh v. Bates, L. R. 2 P. & D. 47.

(b) Sillick v. Booth, 1 Y. & Coll. Ch. C. 121.

(c) Berkeley v. Swinburne, 16 Sim. 275. Taylor . Frobisher, 5 De G. & Sm. 191. Poole v. Bott, 11 Hare, 33. Re Thatcher's Trust, 26 Beav. 365, 368. Re Edmondson's Estate, L. R. 5 Eq. 389. Armytage v. Wilkinson, 3 App. Cas. 355.

(d) Glanvill v. Glanvill, 2 Mer. 38. Re Thurston's Will, 17 Sim. 21. Re Blakemore's Settlement, 20 Beav. 214. Re Morse's Trust, 21 Beav. 174. Rowland . Tawney, 26 Beav. 67. Re Thatcher's Trust, 26 Beav. 365. Re Arnold's Estate, 33 Beav. 163. Richardson v. Power, 19 C. B., N. S. 780.

[*1122]