| Pa. | Oct 21, 1878
delivered the opinion of the court,
Moses Middleswarth by his last will devised certain real estate to his son Jonathan, directing that in case his said son should die without leaving any legitimate issue, the land should be sold, and after paying certain legacies, the balance remaining to be equally divided amongst all his legitimate grandchildren, born or to be born, share and share alike. The question which is presented for decision upon this appeal is whether the interest thus given to his grandchildren was transmissible to their representatives on their death before the period when the division was to take place.
No doubt it is the general rule that a legacy is to be deemed vested or contingent just as the time when it is to take effect shall appear to be annexed to the gift or the payment of it. Where there is no substantive gift, and it is only implied from the direction to pay, the legacy is contingent. But this ruléis, of course, subject to the necessary exception that a contrary intention is not to be collected from the words or circumstances. In McClure’s Appeal, 22 P. E. Smith 414, our late lamented brother, Williams, in an elaborate and exhaustive opinion has shown that there are many cases in which this general rule is not applicable.
In Chew’s Appeal, 1 Wright 23, it was said by Mr. Justice Strong, that “ generally a bequest after the death of a particular person to whom an antecedent interest is given in the same will, is held not to denote a condition that the legatee shall' survive such a person — not to define when the interest shall' vest, but only to mark the time when the gift shall take effect in possession, that possession being deferred merely on account of the life-interest limited to the person on whose death the gift is to take effect.” So in McClure’s Appeal, Mr. Justice Williams said: “ Though there be no other gift than in the direction to pay or distribute in futuro, yet if such gift or distribution appears to be postponed for the convenience of the fund or property, or where the gift is only postponed to let in some other interest, the vesting will not be deferred till the period in question.” Thus, in the common case of a legacy or gift to A., and on his death to B., no one doubts that both interests, the present and the future, vest together at the same instant. Attaching a contingency to the gift of the second bequest ought not and does not affect the ease unless that contingency relates to the capacity of the second legatee or donee to take. In a legacy to A., and if he dies before attaining the age of twenty-one, then to B., the interest of B., though dependent upon a contingency, is transmissible. It would be different if the gift over was to B. at twenty-one, for if he should die before attaining that age, he could never take, and could therefore have nothing to transmit. It was in accordance with these principles that the case of Kelso v. Dickey, 7 W. & S. 279, was decided. There a testatrix bequeathed a legacy to her daughter
Had the- devise been to Jonathan and on his death then to be divided among the grandchildren, no one could question the transmissibility of their interests. That they were to take only in case he died without legitimate issue, though it made their interest dependent upon a contingency, did not change its character in this respect, because it was not a contingency which affected at all their capacity to take. Whenever the contingency happened, if ever it did. happen, they would be entitled. The inclination of the courts is always in favor of the vesting of legacies, because in ninety-nine cases out of a hundred it is the intention of the testator that his bounty should be transmitted to the children or family of the beneficiary, otherwise indeed full effect is not given to it.
Decree affirmed and appeal dismissed at the costs of the appellants.