17 N.C. 366 | N.C. | 1833
"I give and bequeath to my two granddaughters, Sally Ann and Barsheba Miller, when they arrive at age, $1,000, to be paid them out of my estate, or whenever my executors can afford to pay it out of my estate. If either of my granddaughters, Barsheba or Sally Ann Miller, should die before they arrive at lawful age or marry, I wish the survivor to heir that one's part that should so die, and in case both should die before arriving at lawful age or marrying, I wish their legacies to return to my estate."
The case made by the bill and answer was that the plaintiff married Sarah, who died before she arrived at full age, leaving Barsheba surviving her, and the only questions were whether the legacy to the plaintiff's wife was lapsed because of her death within age, (367) and, if not, when did interest upon it begin to run. If a legacy is given to a person when that person arrives at the age of 21, it is a contingent legacy; and if the legatee dies before that time, the legacy is lapsed. If the question now rested on the construction of the first clause in the will, relative to the two legacies to Sally Ann and Barsheba Miller, it would be very clear that the plaintiff could not recover, as it appears that Sally Ann died before she arrived at lawful age. The testator, however, may prevent the legacy from lapsing; but to do so he must not only declare *296 his intention to that effect, but he must likewise mention the person who is to take it. In the second clause in the will, concerning these two legacies, the testator expressly declares that if either of his granddaughters should die before she arrived to the age of 21, or married, her legacy should go to the survivor. He further declares that the legacies shall not come to her estate, or to his residuary legatees, until both his granddaughters shall have died under age and unmarried. The arrival to lawful age or marriage of either of the two granddaughters were the contingencies upon which the legacies vested. If either of the events occurred, the legacy was no longer contingent, but then became a vested legacy. After the marriage of Sally Ann, and her death before 21, the legacy could not, by the express declaration of the testator, go to the survivor, nor could it come to the testator's estate but upon the event of both contingencies failing. Where was it then to go? The answer is plain. It became vested in Sally Ann on her marriage, and on her death it went to the plaintiff, as her administrator. Although the legacy became vested on the marriage of Sally Ann Miller, yet we think it was not payable until the time she would have arrived at the age of 21 (368) years, if she had lived; and, therefore, no interest is allowed upon it until after that time.
PER CURIAM. Decree for plaintiff.
