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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 (9).
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 (8).
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 r. 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.
() 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 0. 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 0. 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 r. Ross,
2 Dick. 529. S. C. 1 Bro. C. C. 120, note. Dawson o. Killett, 1 Bro. C. C. 119, and the cases in the notes. Walker v. Main, 1 Jac. & Walk. 17. Watkins v. Cheek, 2 Sim. & Stu. 199. Poole v. Terry, 4 Sim. 294. Murkin e. Phillipson, 3 M. & K. 257. Goulburn v. Brooks, 2 Younge & C. 539. Salisbury v. Petty, 3 Hare, 86, 90, 91. Evans 0. Scott, 1 H. L. C. 43, 57. Remnant v. Hood, 27 Beav. 74. 2 De Gex, F. &J. 396.
(1) 2 Y. & Coll. C. C. 134, 138.
(u) Watkins o. Cheek, 2 Sim. & Stu. 199.
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 (x). 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).
In concluding the general inquiry into the doctrines by which it is ascertainable whether the legacies are vested or contin- Effect of the tesgent, it may be proper to consider the question which tutors declaring arises on wills in which the testator expressly declares bea Vestehall 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" (6): 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).
(2) See post, p. *1561.
(y) Fearne, Cont. Rem. 557, note by Butler. Chandos v. Talbot, 2 P. Wms. 601. Prowse v. Abingdon, 1 Atk. 482. Re Hudson's Trusts, 1 Dru. 6, t. Sug. den, C. of Ireland.
(2) Taylor v. Frobisher, 5 De G. & Sm. 191, 198.
(a) King o. Cullen, 2 De G. & Sm. 252. Simpson o. Peach, L. R. 16 Eq. 208. So the word “entitled ” may
“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.
(6) Sillick v. Booth, 1 Y. & Coll. Ch. C. 121.
(c) Berkeley v. Swinburne, 16 Sim. 275. Taylor . Frobisher, 5 De G. & Sm. 191. Poole o. 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 0. Tawney, 26 Beav. 67. Re Thatcher's Trust, 26 Beav. 365. Re Arnold's Estate, 33 Beav. 163. Richardson o. Power, 19 C. B., N. S. 780.
Of legacies on conditions. In the preceding section one sort of conditional legacy has been considered : viz., where the condition is that the legatee shall be alive at a particular period : It is now proposed to treat of this species of legacy generally. A conditional legacy is defined to be a bequest whose existence
depends upon the happening, or not happening, of some Conditional legacy :'
uncertain event, by which it is either to take place or to
be defeated. No precise form of words is necessary in order to create *condition in wills : 25 but, whenever it clearly appears that it was the tes| 25. 2 Jarman on Wills 505 ; 2 Red- Phelps, 17 Wend. 393, the will “refield on Wills, 300 ; Wheeler v. Walker, quired” the devisee to pay a certain 2 Conn. 196 ; Worman v. Teagarden, 2 legacy. This was held not to be a conOhio 380 ; Brown o. Concord, 33 N. H. dition, but a personal charge upon the 285 ; Lindsey v. Lindsey, 45 Ind. 552; devisee, and enforceable as an equitable Stillwell v. Knapper, 69 Ind. 558. mortgage against the land devised. So,
The payment of a debt or legacy, or in Gridley v. Gridley, 24 N. Y 130 ; the support and maintenance of some Spraker v. Van Alstine, 18 Wend. 200 ; person, is the frequent subject matter Mahar v. O'Hara, 4 Gilm. 424; Sands of a condition to be performed by the 0. Champlin, 1 Story C. C. 376. In legatee or devisee. These provisions these cases a direction that the devisee have been variously construed and en- should pay a debt or legacy was enforced in the United States : as a per- forced against the devisee as a personal sonal charge and liability thrown upon liability arising from acceptance of the the legatee or devisee—as a charge upon devise ; and in Lord v. Lord, 22 Conn. the land or thing devised-and finally as 575, a legacy, with direction that legatee a condition, by non-performance of pay debts, drew after it the same liawhich the estate of the legatee or bility. In the following cases personal devisee is divested. The last of these liability was implied and enforced from constructions appears to have been gift “ upon condition" that donee pay : adopted by the courts only as a last re- Horning v. Wiederspalen, 1 Stew. (N. sort. In all cases where payment is to J.) 387; Wheeler v. Lester, 1 Bradf. be made or support to be provided by 293 ; Sanders v. Sanders, 3 Bibb 286. the legatee or devisee, whether it be In Birdsall v. Hewlett, 1 Paige 32, a made expressly a condition of the gift devise, “provided ” devisee paid certain or not, the acceptance of the gift cre- legacies, was construed to be a condition ates a personal liability for the pay. with a charge of the legacies upon the ment, support, &c., which will be en- land devised, and a personal liability of forced both by courts of law and of the devisee if he accepted the devise. equity, e. g., at law as an implied See also Sheldon v. Purple, 15 Pick. covenant. Armstrong v. Armstrong, 4 528, where the testator devised his Baxt. 357. So, in equity, in Fox v. whole estate to A., and “required” tator's intent to make a condition, that intent shall be carried into effect (e). that B. be supported out of his estate. port of them all, the same to be divided In Pickering v. Pickering, 6 N. H. 120, when the youngest came of age, was a legacy charged upon land was en- held not to create a charge for the forced by action against the devisee of maintenance of one upon the undivided the land personally. But a devise to shares of the others. Crandall v. HoysA.,"provided he pay" a certain legacy, radt, 1 Sandf. Ch. 40. has been held to be not a condition but Where property is devised to be a charge upon the land, in Woods v. appraised and taken at a valuation, it Woods, Busb. L. 290 ; Hanna's Appeal, amounts to an option only, Wyckoff v. 31 Penn. St. 53 ; see too, Patterson v. Wyckoff, 4 Dick. (N. J.) 344—no title Patterson, 63 N. C. 322 ; Casey v. Casey, passing to the devisee if he elects 55 Vt. 518. So, a devise to A., “he not to make the payment, Ditmas 0. paying " certain legacies, Tower's Ap- Baas, 21 N. Y. Supp. 201 ; or to a propriation, 9 Watts & S. 103; Luckett charge on the land, Lancaster Bank o. White, 10 Gill & J. 480; or“ by his Appeal, 127 Pa. St. 214. And personal paying out of my estate” certain legacies, property so bequeathed goes to the Taft o. Morse, 4 Metc. 523 ; see also 12 executors who are chargeable with it Wheat. 498, and Gardner v. Gardner, until so taken by the legatee. Matter 3 Mass. 178. So, a devise to A., “pro
of Pollock, 3 Redf. 100. vided ” he should provide a home for In the following cases the words in his sister, with no limitation over on the will requiring payment, support, breach, Woodward v. Walling, 31 Iowa maintenance, &c., by the donee, have 533 ; Meakin v. Duvall, 43 Md. 372 ; or been held to create a condition : with the support of testator's daughter 1st. Condition precedent. Devise to charged on the devise, Veazey v. White- A. “on payment” by him of a certain house, 19 N. H. 409. So, a legacy with legacy, West v. Biscoe, 6 Harr. & J. direction that the legatee maintain the 468; Estate of Broad, Myrick Prob. 188; testator during his life. Colwell 0. "he paying,” Bradstreet v. Clark, 21 Alger, 5 Gray 67.
Pick. 389 ; or if he shall pay, Garland v. In Rhett 0. Mason, 18 Gratt. 541, Garland, 73 Me. 97 ; Buswell v. Eaton, however, a devise to testator's wife“ for 76 Me. 392 ; legacy to A. “on conher maintenance and support and for
of payment, Beall v. Deale, the maintenance and support of our in Gill & J. 216 ; “if he first execute children,” was held to constitute neither mortgage to secure legacies,” Laurens o. a charge nor a trust for the children; Lucas, 6 Rich. Eq. 217; or pay a note while in Jennings r. Jennings, 27 III. made by testator as surety for him, 518, a devise to sons if they support Thomas v. Northcross, 11 Lea 345 ; so, their mother, with right to immediate an annuity to A. "to bring up B., to possession “if they comply with these whose care I commit her, and at the conditions," was construed to be both a child's death to the said A.,” Pitt r. condition subsequent and a charge on Pitt, 26 L. T. R. (N. S. 1872) 827. the land. And a devise of land to five 2nd. Condition subsequent. Devise to persons for the maintenance and sup- A. on condition” that he pay legacy
(e) Godolph. Pt. 3, c. 4, s. 4. Egg v. Devey, 10 Beav. 444.
In the case of Tattersall v. Howell (f), a legacy was given provided the legatee changed his course of life and gave up all low company within one year, Wheeler v. Walker, But words expressing the purpose of 2 Conn. 196 ; see too, Platt 0. Platt, the gift do not constitute a condition, 42 Conn. 330 ; or that he pay debts and Brown v: Concord, 33 N. H. 285; and legacies, Horsey v. Horsey, 4 Harring. the legacy will not fail, although the 517 ; devise to A.“ provided that” he purpose is not accomplished (sending pay a certain sum to executor, Downer v. minor legatee to a certain college), Downer, 9 Watts 60 ; or “if A. will not Bonner v. Young, 68 Ala 35 ; or is consent to pay ground rent,” then that discontinued (e. g., for a city asylum) the devise should be void and the before payment of the legacy, Succesproperty return to testator's estate, sion of Vance, 39 La. An. 371 ; or redKennedy's Appeal, 60 Penna. St. 515 ; dered impossible by sale (e. g., for or on condition that donee maintain, furnishing a certain house), Lounsbery support, or provide for some third per- v. Parson, 3 Dem. 33; (for the uses of a son, Stark
0. Smiley, 25 Me. 201 certain farm), Five Points House of (although the devise concluded in that Industry V. Amerman, 11 Hun 161 ; case with the words, “therefore as soon or already accomplished before testaas he shall have paid . . . he shall be tor's death (e. g., for the suppression of entitled to all my real estate”); so, too, the rebellion), Dickson o. United States, Marwick v. Andrews, 25 Me. 525; Smith 125 Mass. 311. So,
legacy to a v. Jewett, 40 N. H. 530; Simonds v. church, provided “the whole debt shall Simonds, 3 Metc. 562 ; Clapp v. Clapp, be removed," is not upon condition pre6 R. I. 129 ; Judd v. Bushnell, 7 Conn. cedent in such sense that it cannot be 211; Creswell v. Lawson, 7 Gill & J. applied toward the payment of the debt. 240 ; Huckabee v. Swoop, 20 Ala. 491 ; Taylor v. Tolen, 11 Stew. (N. J.) 91. So, Cross v. Carson, 8 Blackf. 138 ; Stone v. a bequest “in consideration of my being Hurford, Id. 452 ; Thorp v. Johnson, taken good care of and well treated for 3 Ind. 343 ; Petro v. Cassiday, 13 Ind. the remainder of my life” by the leg. 289; Beck v. Montgomery, 7 How. atee. Martin v. Martin, 13 Mass. 547. (Miss.) 39 ; or pay an appraised value, This is true also of precatory words, Thomas v. Kelly, 3 Rich. (N. S.) 210; e. g., providing for the support of “ on his paying,” Burnett v. Strong, parents, and that if agreeable to all 26 Miss. 116; Birdsall v. Hewlett, parties they shall continue to reside with 1 Paige 32, enforceable also as a per- testator's family, Ward 0. Ward, 10 sonal liability, and in equity as a charge 0. Rep. 832 (Ala. 1892); or "it is my on the land ; Harris v. Fly, 7 Paige 427; desire” that the legatee return to this so too, a devise to A. “ by his paying,” country and do not remove the objects Ward v. Ward, 15 Pick. 511 ; so, if bequeathed, Harris v. Hearne, Winst. devisee “ comply with these
Eq. 92 ; or that the legatee live with her ditions,” (to take care of mother), Jen- mother, and the legacy be paid when nings v. Jennings, 27 I11. 518. In Dun. she marries or inclines to live else. bar v. Dunbar, 3 Vt. 472, a legacy of where,” Loder v. Hatfield, 71 N. Y. 92. all testator's personal property was In this case the legatee died in her held to be on the implied condition that mother's home before payment of the he pay testator's debts.
principal, which was held to be payable