237 Pa. 262 | Pa. | 1912
Opinion by
Frederick Grothe died February 2, 1894. In the preceding month he executed a codicil to his will, and the following clause in it gives rise to the question raised on this, appeal: “I give and bequeath unto the male children of my son Frederick W. Grothe living-
Upon the subject of vested and contingent legacies, the rule of the civil law adopted in England and followed here- is that, where the contingency is annexed to the time of payment only, and the legacy has been given by a previous bequest, it is vested; but if the contingency is annexed to the legacy, it does not vest until the contingency happens: Reed v. Buckley, 5 W. & S., 517. “On the subject of what constitutes a vested or contingent legacy, this court has, in many cases, iterated and reiterated the rule of the courts in England, that, where there is a substantive bequest or gift of a sum of money, to be paid at a future time, there the bequest or legacy is vested. But where there is no antecedent gift or bequest, independent of the period fixed for payment, then it is not vested, but contingent”: Bowman’s Appeal, 34 Pa. 19. This rule is more elaborately stated in Smith on Executory Interests, Sec. 285-286: “Where real or personal estate is devised, or bequeathed to a person, when or as soon as he shall
Another contention of the appellant is that the question of the vesting of the legacy in his decedent is res adjudicata. A former auditor, in distributing the balance in the hands of a former administrator d. b. n. c. t. a., undertook to construe the codicil to the testator’s will, and awarded to each of the three grandsons the sum of $1,000, to be paid to them, out of the proceeds of real estate of the testator remaining unsold, when they respectively reached the age of twenty-five years. The report of this auditor was absolutely confirmed by the court below in 1896, and, as no appeal from the decree of confirmation was taken, it may have become final and conclusive upon all parties sui juris who appeared in person or by counsel before the auditor, or who had due, legal notice, actual or constructive, of the time and place of the hearings before him, and he acted within the scope of his authority. But, as the learned court below correctly held, this adjudication was not conclusive upon the grandchildren of the testator, who, if they were in existence at the time of the audit, were minors without guardians. It is for them that the present trustee is to collect and preserve, the funds of the estate, and it is his right to now raise the question of the vesting of the legacies to the three-grandsons of the testator. For another reason the matter now in dispute is not res adjudicata. The distribution made by the former auditor is conclusive only as. to the fund which he was appointed to distribute. When he attempted to make an award to the grandsons of the testator out of the proceeds of real estate not yet' sold, he acted beyond the scope of his powers: Guenther’s Appeal, 4 W. N. C. 41; Kline’s Appeal, 86 Pa. 363.
The assignments of error, are all overruled and the decree is affirmed at appellant’s costs.