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]