| Pa. | May 15, 1839
The opinion of the Court was delivered by
The chancery books are full of very nice distinctions, as to what words give a vested legacy; and the amount of the whole seems to be, that scarcely any form of expression can be used on whieh alone reliance can be placed. The whole will is to be taken into consideration, and the intention of the testator is to be gathered from it; and if that can be discovered, every rule of construction is to give way to it. The intention governs, unless it contradicts some better doctrine of the law.
One of the rules is, that where there is no substantive gift of the legacy until the time when it is payable, it does not vest until then. Here the only matter in dispute is the residue after the payment of debts, and certain provisions for, or legacies to, each of his children. These provisions are in amount or time of payment, or both, different to each child. When his land is sold and “ the youngest child eomes to full age, and each has received their share as above stated, and there is any yet remaining, it is my request that what remains shall be equally divided betwixt the surviving heirs.” It is this residue alone which is in dispute—we must decide how it is to go; and it is neither mentioned nor alluded to until it is, by this sen
The provision for his family, at the discretion of his executors, and the payment of the legacies to the sons, if so much could be spared from the younger children, are only directions as to the income or interest. That income or interest is given to be used for all the minors living at the time. The residue is given to the survivors, when all previous legacies are paid and the youngest son is of age. See 12 Vezey 75; 1 Roper on Legacies 378.
I am aware that when a legacy is given in words which would appear to make it contingent, yet if the interest is given to support the legatee, it has, in some cases, been held a vested legacy. The words of the will may, however, prevent this. See 1 Roper 397, 3 Atk. 319; 3 Bro. Parl. 365, 373, and the cases there cited.
There is, however, a class of cases which come under another division. I mean as to the vesting and divesting of legacies, where there is a limitation over on a particular event.
It is settled, a legacy may be given absolutely, or on a contingency within a limited time; and where, from the words of bequest, it would be called a vested legacy, it is said to divest on the contingency which carriés it over to another. The plain meaning of this clause is, that if all his children are living when the youngest child comes of age, the residue is to be divided among all:, if any are dead, their proportions are given to those who 'at that .time are living; it is to be equally divided among his surviving'heirs. See 1 Roper 403 et seq.
Here is no uncertainty, and no doubt can be raised. Particular legacies had been given to each child; these were to be paid before the last clause took effect. And if any had died before his youngest son came of age, provision is made for that case; he had in the very previous sentence contemplated the death of some; in the last sen--tence he gives the residue, to his then surviving heirs.
Judgment reversed, and judgment for plaintiff.'