26 N.J. Eq. 278 | New York Court of Chancery | 1875
The question presented for decision, arises under the will of John Herbert, late of the county of Somerset. The will is dated February 25th, 1856, and the testator died in March of that year. The sixth section is as follows : “ I give and devise to my said executors all that tract of land and premises situate in the county of Genesee and State of New York, now in the occupancy of Abraham. Post, being the same conveyed to me by the said Abraham Post, by deed dated the 6th of November, 1838, and in said deed particularly described, as by reference to the same recorded in the Genesee county clerk’s office, in book 51 of deeds, page 200, will appear; to have and to hold the same, in trust for the use of the said Abraham Post; he, the said Abraham, to have and enjoy the possession of the same, and the rents, issues and profits thereof, until the youngest child of my daughter, Amy Eliza, attains the age of twenty-one years; and in case it then be advisable, at any time before the said child attains the age of twenty-one years, to dispose of the said farm or tract of land, I do hereby authorize, empower and direct my said executors (the written assent of the said Abraham Post being first had and obtained) to sell the said tract of land and premises, at public sale, and the net proceeds of said sale to invest in some safe security, and the interest arising thereon, pay over annually to the said Abraham Post, until the youngest child of my said daughter, Amy Eliza, attains the age of twenty-one years. After the said child attains the ago of twenty-one yeai’s, I order and direct my executors to sell the said tract of land at public sale (if the same is not already sold, as above directed), and the net proceeds of said sale, or the said principal sum invested, as aforesaid, as the
The question presented is, whether the legacies given to Amy Eliza’s children were vested at the testator’s death, or Avhether they were contingent upon the legatee’s attaining to the age of twenty-one years. If they were vested at the death of the testator, Martha’s administrator is entitled to the one-sixth in question; if contingent, her brothers and sisters are entitled to the entire fund. The intention of the testator was to give the use of the farm in question to Abraham Post, until all the children of the latter’s late wife (the testator’s daughter, Amy Eliza) should have attained to their majority, Avhen, presumably, he would no longer be charged Avith their support or maintenance, and they Avould no longer be dependent on him. Accordingly, he gave to Abraham Post, out of that property (which, judging from the plan of the Avill, Avas the share which he Avould have given to his daughter, Amy Eliza, had she been living, for her life, and after her death, to her children), the use thereof, until the majority of the youngest child, and directed, that at that time the principal should be, by his executors, divided betAveen Amy Eliza’s
In the case under consideration, the time of payment is not annexed to the substance of the legacy, though there is no gift ■of the legacy distinct from the 'direction to the executors for its payment. The event on which the division was to take place was in no wise uncertain. The gift is not to such of the children as should be living when the youngest should attain to the age of twenty-one years, nor is there any language used, from which the conclusion can be deduced, that it was the inten
By the construction insisted upon in behalf of the surviving children, it is necessary to impute to the testator an intention that the children of any of Amy Eliza’s children, who should die before the period of distribution, should not participate in the fund. Martha A., had she lived, would have been over thirty years of age when the youngest child attained her majority, and the oldest child would then have-been thirty-six years old. Indeed, at the time when the will, was made, the oldest child was over twenty-one years of age.. The contingency of-the death of some of these children, leaving issue, before the period of distribution should have arrived,, may well have been in the- contemplation of the testator. The will contains no evidence of his intention to confine participation in the fund, to such of the children as should live to the period fixed for the distribution. On the other hand, the bequests to the children of his other daughters, show that he intended that the shares given to his grand children should vest at his death. To each of his daughters, Julia Jane and Phebe, he gave the use of a farm for life, vesting the title in the executors, with like power of-sale and distribution as in the case of the farm in Genesee county, except that the distribution wras to take place at the death of the life tenant and in those cases, he provided that at the death of the life-tenant the proceeds of sale, or the principal money derived, from sale made before the death of the life tenant, should be-“divided between the children’’ of the life tenant, “share- and share alike, to be paid to them as they” should “respectively attain to the age of twenty-one years.” By the third
The reason for the peculiar provision in the bequest to the-children of Amy Eliza, that the distribution should not be made until the youngest child should have attained to the age of twenty-one years, has been before suggested. Had she been alive at the time of making the will, there is no reason to doubt that he would have made the like provision for her and her children in respect to the Genesee farm, which he had made for two of his other daughters and their children in respect to the farms, the use whereof he gave for life to those daughters. But she being dead, he gave to her husband, to enable him to bring up her children, the use of the Genesee farm for a period covering the minority of the youngest child, intending that, after that purpose should have been served, the proceeds of the property should go to Amy Eliza’s children, in like manner as provided for the children of his other two.
