Dusenberry v. JohnsonDusenberry v. Johnson
Three questions were argued :
First. Was the legacy of $2,000 to the two grandchildren contingent upon their arriving at the age of twenty-one years, or •was it vested, subject to be devested in case both died before reaching twenty-one ?
Second. If vested, what was the effect of the death before the grandchildren, of their father, to whom it was limited, by way of executory bequest, in case of the death of each grandchild before attaining twenty-one?
Third. If the legacy was contingent, and never vested in either the two grandchildren or their fаther, then did it lapse, or was it included within the gift of the residuary bequest to the younger son James, who still survives?
As to the first question. I think it quite clear that the legacy vested in the two grandchildren, subject to be devested in favor of their father in case they both died before attaining twenty-one years. The giving of the interest to the grandchildren during their minority shows that the tеstator, to use the language of Lord Mansfield in Goss v. Nelson, 1 Burr. 227, attached the contingency to the time of the payment, and not to the substance of the gift. The authorities on the subject are collected and commented upon by Chief-Justice Green, sitting for the chancellor, in Gifford v. Thorn,
This rule of construction was approved and acted upon by the court of errors and appeals in Post v. Herbert, 12 C. E. Gr. 540, where some of the numerous authorities are collected by the late chief-justice in speaking for that court.
See, also, 2 Jarm. Wills (R. & T. ed.) 459 et seq.; 2 Wms. Ex. (R. & T. ed.) 527 et seq.; 1 Rop. Leg. *572 ch. 10, § 3, second subdivision, and cases there collected; Hawk. Wills *227, and cases cited ; Theob. Wills 276, and cases there cited.
As to the second question. I am of the opinion that the death of the father of ^he grandchildren during their lifetime did not result in a lapse. In other words, the death of the father of the two grandchildren in their lifetime prevented the devesting of the legacy by their death before attaining twenty-one years, and that the survivor died vested of it.
This was directly decided by Chancellor Runyon in the case of Drummond’s Executor v. Drummond, 11 C. E. Gr. 234 In that case there was a bequest to the testаtor’s adopted daughter, Jane, but if she should die without leaving lawful issue, then testator gave all his property to his nephew, “ Philip McGran, now living in the city of Augusta,” &c. Jane Drummоnd lived and attained her majority, but McGran died in the lifetime of the • testator. The chancellor cited in support of his opinion in that case Den v. Schenck, 3 Halst. 34; Jackson v. Noble, 2 Keen 590. The latter casе is quite in point here, for there, the property consisting of both realty and personalty, was given to trustees in trust for the daughter for life, with remainder to her heirs and exеcutor, &c., with a provision that in case she should marry and have no children, then the property was to belong to testator’s son, or in case of his son’s decease before her death, then to the sou’s children ; and the son having died in the lifetime of the daughter, leaving no children, it was held that the executory gift over could not take effect, and that the estate was vested absolutely in the daughter. The difference be
Jackson v. Noble seems to be quite in point with this, not only upon the question now under discussion, but upon the proposition that the legacy was vested in the grandchildren. To the same effect is 2 Jarm. Wills (R. & T. ed.) 489.
The doctrine, of Drummond v. Drummond was adopted ‘and followed in Groves v. Cox,
The result is that the survivor of the grandchildren died vested with the whole legacy, and it belongs to his personal representatives, if any, and if none, to his mother as next of kin.
The case of Jackson v. Noble was commented upon by Vice-Chancellor Kindersley in Robinson v. Wood, 27 L. J. Eq. 726 (1858), (also reported in 4 Jur. N. S. 625, the former the better report). There was there a devise of land to trustees for the benefit of the daughter of the testator during minority, and аt her majority to convey to the daughter in fee, with a proviso that in case the daughter should die under twenty-one, leaving issue, then for the benefit of the issue, but if she should die under twenty-one without, issue, then upon trust to sell the properly and pay the proceeds to a charity. The daughter died without issue before twenty-one, and the quеstion was whether the land went to her heirs-at-law or remained vested in the trustees; and it was held, in obedience to a decision of the court of exchequer chamber, in the case of Doe, d. Bloomfield, v. Eyre, 5 C. B. 713 (assuming that the effect of the devise was to vest the estate in the daughter during her minority, subject to be devested in case of her dying without issue bеfore arriving at maturity), that- the-fact that the bequest over to the Gharity was void 'did not prevent the devesting of the estate from the daughter.
The learned vice-chancellor, in delivering judgment, expressed strong personal dissatisfaction with the rule as laid down in Doe v. Eyre, and his approbation of the rule in Jackson v. Noble. He says (at p. 728): “ It has been argued that the entire gift over being void, there is nothing to devest thе estate from
The distinction taken between Doe v. Eyre and Jackson v. Noble was that the testator in Doe v. Eyre must have been presumed to know that the devise оver for the benefit of the charity was void and never could take effect. Hence it was argued that he deliberately made a devise over which he knew frоm the start never could take effect. While in Jackson v. Noble (and the present case) there was a possibility, from the testator’s standpoint, that the bequest over could take effect; and the inference is that he did not intend that the estate should be devested from his grandchildren except upon the condition that their father was alivе at the time of their decease, under twenty-one.
This distinction between Jackson v. Noble and Doe v. Eyre is illustrated by the case decided in our courts in dealing with this question, of Den v. Schenck, 3 Halst. 34, which was a devise of land with an executory dеvise over, which, after the death of the testator, became impossible by the death of the devisee of the executory devise in the lifetime of the first takеr, and it was held that the title became absolute in the first taker.
Upon the question of the intent of the testator, to be derived from a consideration of the whole will, it is worthy of remark thаt he seems not to have had in his mind a complete scheme for the disposition of his property, for he omits to provide for the quite possible contingenсy of one or both of his grandchildren dying under twenty-one and leaving issue. If either of them had left issue, the fallacy of the argument just made in behalf of James -would be palpable; for its result would be that the fund would have gone to James, to the exclusion of the offspring of the grandchildren.
I will advise a decree in accordance with the above views.