High's Adm'r v. Worley's Admr'x

| Ala. | Jun 15, 1858

STONE, J.

The general rules for determining whether a beqiiest is vested or contingent, are, that where the time of division or payment is of the substance of the gift, then the legacy is contingent; when time is mentioned only as a qualifying clause of the payment or division, then the legacy is vested. A second rule is, that the law inclines to regard legacies as vested, rather than contingent. The rule last stated is applied only when the intention is obscure and doubtful. — Travis v. Morrison, 28 Ala. 494" court="Ala." date_filed="1856-01-15" href="https://app.midpage.ai/document/travis-v-morrison-6505747?utm_source=webapp" opinion_id="6505747">28 Ala. 494.

In the will which we are considering, there is not a qualifying word or clause, which shows that time was made of the substance of the gift. The whole property was dedicated to the use and support of testator’s wife and children, until Eanuy Ann should attain to the age of sixteen. Then it was to he sold and divided between his wife and children, share and share alike. None of the words are found in this will, wdfich are usually understood as expressing contingency; such as, if, in the event, &c. If the words in this will be held contingent, the result will be that, if Mrs. Worley and her children had died before Fanny Ann reached the age of,sixteen, there would have been an intestacy of the entire estate.

We are not able to distinguish, in legal construction, this will from the one construed in the case of McLeod v. McDonald, 6 Ala. 236" court="Ala." date_filed="1844-01-15" href="https://app.midpage.ai/document/mcleod-v-mcdonnel-6502159?utm_source=webapp" opinion_id="6502159">6 Ala. 236. The legacy in that case was held to be vested, and we hold that this is also.

[2.] Eanny Ann arrived at tbe age of sixteen, as the bill avers, seme time in 1846. Till that event happened, no legatee had any right to call for distribution. Mrs. High died before 1846. Hence, during her life, she had no right to call on the administratrix to distribute, or give to her any portion of the estate. No administration was taken out on the estate of Mrs. High until a short time before this bill was filed, in 1855. The claim of her administrator for distribution of her father’s estate under the will, was neither barred nor stale.

[3.] It will be necessary to amend the bill, by adding the other distributees. — See Colbert v. Daniel, at the last term.

[4.] The bill in this ease, to obtain distribution, is well filed. — Marshall v. Crow, 29 Ala. 279.

The decree of the chancellor is reversed, and the cause remanded.