5 Rawle 99 | Pa. | 1835
The opinion of the court was delivered by
who after stating the facts, proceeded as follows: It is contended that the .court below ought to have given judgment in favour of the plaintiff in error. First, because the testator' having directed that the four thousand dollars should be divided equally among his four grand-daughters, and paid by his two grandsons to them, as they respectively attained the age of twenty-one years; and the twenty-seven hundred and fifty dollars charged on the land devised to James B. Hodgson, being the only part of the four thousand dollars which had become payable according to the terms of the will at the time Eliza Hodgson attained twenty-one, the time when she was to receive her legacy or fourth part of the four thousand dollars; that she therefore was bound to look to the land devised to James, as the only fund out of which she could receive her full share of the money; for Joseph not having then attained his age of twenty-one, was not entitled to have possession of the land devised to him, before which he was not bound to pay his twelve hundred and fifty dollars the residue of the four thousand.
The plaintiff below before the commencement of this suit recovered from the alienee of James, one fourth of the twenty-seven hundred and fifty dollars charged on the land devised to him, and seeks now to recover only the like proportion of the twelve hundred and fifty dollars, charged on the land devised to Joseph, with interest thereon from the time that Joseph attained his age of twenty-one years.
The second is, that if any portion of the legacy bequeathed to Eliza be considered as charged on the land devised to Joseph, that portion of it, whatever it may be, has lapsed and sunk into the land for the benefit of Joseph, inasmuch as Eliza died before he arrived at the age of twenty-one years, the time limited for the payment of it. '
It is perhaps not very easy to reconcile all the cases on this subject. But still, notwithstanding the rule may be as contended for by the counsel for the plaintiff in error, where the money charged on the land or to be raised out of it, is intended for a marriage portion or an advancement at a particular age, and the legatee dies before marriage or the time limited for the advancement'being paid, yet if it appears from the whole of the will or any part of it, that the testator intended it should be otherwise, the rule cannot obtain. The reason of the rule, if it has any, seems to be, that if the occasion for which the gift was designed should never happen, the gift itself ought not to take effect. The first' and leading case in support of this rule, is Pawlett v. Pawlett, 1 Vern. 321; which was followed by Smith v. Smith, 2 Id. 92. Yates v. Phettiplace, Id. 416. S. C. Pre. Ch. 140. Jennings v. Looks, 2 P. Wms. 276. Chandos v. Talbot, Id. 602, 612. Prowse v. Abingdon, 1 Atk. 482. Van v. Clark, Id. 510. Gawler v. Standerwuke, 1 Bro. Ch. Ca. 106, in note to Green v. Pigat, and Harrison v. Naylor, 3 Bro. Ch. Ca. 108. If however the devise of the land, upon which the legacy is charged, becomes vested either in possession or in interest immediately upon the death of the testator, and by the terms of the will is given subject to the payment of the legacy, the legacy must be considered likewise vested; and if the legatee should die before it becomes payable it will pass to his or her representatives; because in such case it is plain, from the terms of the will, that the legatee was as much the object of the testator’s bounty as the devisee, and that the testator intended that the latter should take the land cum onere. I consider this doctrine fully established by the cases of Hutchins v. Foy, Comy. Rep. 716; Hodgson v. Rawson, 1 Ves. 44, and Godwin v. Munday, 1 Bro. Ch. Ca. 191. In Hutchins v. Foy, the legacy was charged on -real estate, devised in remainder to Foy, the defendant, to be paid by him upon his becoming entitled to the possession thereof. The niece married a person of the name of Gover, and dying afterwards before the remainder became vested in possession in Foy, Gover the husband took out administration to his wife, and assigned the legacy to the plaintiff in satisfaction of a debt. The legacy was held tobe transmissible because the remainder vested immediately in Noy upon
There is also a second ground, if it were necessary to rely on it, upon which the recovery of the plaintiff below, perhaps might be sustained. It would seem according to the principle laid down in King v. Withers, Gilb. Eq. Rep. 27, that where a legacy charged upon land depends upon two contingencies, and one of them only happens, it is sufficient to have the legacy raised. This principle is mentioned with seeming approbation by Lord Hardwicke in Lowther v. Condon, Barnard. Ch. Rep. 329-30. 2 Atk. 129. Now in the present case it may be said, that by the will the payment of the legacy to Eliza, was made to depend upon two contingencies, that is, the attainment of twenty-one years of age by her, and again the attainment of the same age by Joseph, the devisee of the land; she having attained her age of twenty-one before her death, one of the contingencies at least happened in her lifetime, though the other did not, but has happened since and before the institution of this suit, and therefore the legacy became vested and transmissible.
But there is a third ground upon which the defendant in error is entitled to recover according to the authority of a train of cases that cannot be shaken or questioned. It is evident from the will that the postponement of the payment of the legacy to Eliza from the time she came of full age, until Joseph the devisee should arrivé at it, was not on account of the age of Eliza the legatee, but clearly from a regard to the convenience of Joseph himself and the circumstances of the estate charged with the legacy. The time of payment having then been postponed merely for the purpose of favouring Joseph, it would be unreasonable, if not unjust, to hold that the death of the legatee during such indulgence, should in effect give the legacy to him to the prejudice of her personal representatives. The first case in which the legacy seems to have been considered vested and transmissible on this ground is King v. Withers, Talb. Ca. 117. Pre. Ch. 348, which was affirmed in the House of Lords, 4 Bro. Par. Ca. 228, and recognized by Lord Hardwicke in Lowther v. Condon, 2 Atk. 128, 9, as well as acknowledged in the cases of Butler v. Duncombe, 1 P. Wms. 457. Pitjield’s case, 2 P. Wms. 513. Hutchins v. Foy, 716. Emes v. Hancock, 2 Atk. 507. Sherman v. Collins, 3 Atk. 322. Hodgson v. Rowson, 1 Ves. 44. Jeale v. Titchener, Amb. 703. S. C. 1 Bro. Ch. Ca. 120, (in note.) Tunstall v. Brachen,
.The Judgment is therefore affirmed".