Thе questions in this case depend upon the construction to be given to the provisions of the will of the defendants’ testator respecting the be
The executors, in pursuance of these directions, set apart a principal sum sufficient to produce the annuity to Mrs. Freeman; and the annuity was regularly paid to her during her life. She died in 1860, without having made any disposition of said principal, and leaving surviving her, three sons and two grandchildren, the offspring of a pre-deceаsed daughter.
The principal thus set apart yet remains in the hands of the executors, it having beеn demanded by the plaintiff, as administrator of Mrs. Freeman, on the ground that it was given to her, fully and absolutеly, by the will, and that the clause limiting and directing the disposition of it in case she died without having disposed оf the same was repugnant to the bequest and void ; and the executors having claimed that the principal is to be paid by them to the surviving children of Mrs. Freeman. The object óf the suit' is to determine thеse conflicting claims.
The will, in express terms, conferred upon Mrs. Freeman not only the incomе of the fund during her life, but also the
That rеstriction had no other effect than to continue the principal in the hands of the executors until her death, in order that the income might be secured to her during life. That it did not prevent the vesting оf the principal, nor interfere with her absolute right of disposal, is shown by the case of Sweet v. Chase, (2 Comst. 73.) There, а testator, by one clause of his will, gave a legacy to his wife, to be paid out of the avаils of the sale of his real estate, and by a subsequent clause he directed his executors to sell such real estate after the death of his wife. Of course, under those provisions, any disposition which the legatee might have made of the legаcy in her lifetime, would not have taken effect; that is, would not have transferred the possession of the fund, until after her death, because the legacy was not payable until the happening of that event; which is precisely the effect of the restriction under consideration. Tet in thаt case the court of appeals held that the legacy vested on the death of thе testator; that the legatee had the same right to sell or dispose of it that she had in respect to any other property ; and that on her death, if undisposed of by her, it went to her persоnal representatives, who might enforce the payment, against the executors. In the cаse of McLoskey v. Reid (4 Brad. 334) a testator bequeathed six thousand dol
As the legacy vested absolutely in Mrs. Freeman, the further limitation to her children surviving her is repugnant to the bequest, and void. (Attorney General v. Hall, Fitz. 314. Ide v. Ide, 5 Mass. Rep. 500. Jackson v. Robins, 16 John. 537. Helmer v. Shoemaker, 22 Wend. 137.) In Norris v. Beyea, (3 Kern. 286,) and Tyson v. Blake, (22 N. Y. Rep. 558,) the primary legatee had no right to dispose of the рrincipal.
It follows from these views that the plaintiff, as administrator of Mrs. Freeman, is entitled to a judgment that the defendants, as executors, pay to him the principal set apart to produce the annuity payable to his intestate.
Judgment accordingly
Johnson, J. C. Smith and Welles, Justices.]