1 Aik. 275 | Vt. | 1826
This cause has been heard, on a demurrer to the bill of complaint, and the principal point litigated, is, whether the legacy of two hundred dollars to Moses D. Robinson, under the will of Elijah Dewey, lapsed by the decease of said Moses D. Robinson, after the decease of Dewey, and before the legacy was payable? This is properly treated by both parties, as the essential point; for, if it thus lapsed, the orators have no claim, by reason of any thing alleged in the bill. If otherwise, if it became vested in Moses D. Robinson in his lifetime, though payable after his decease, the orators, in the right of said Catharine, have right to the same, under the will of said Moses D. Robinson.
This point has been presented, with perfect fairness, and no small degree of ingenuity, on both sides; and no industry has been wanting, to find auihorities that seem to be in point, on either side. These authorities well support the position, tiiat a legacy, given absolutely to be paid at a future day, vests, if the ■legatee survive the testator, though he die before the time of payment; but when it is given as a charge upon real estate only, and the legatee die before day of payment, the legacy lapses, Unless it appear by the will, that payment of the legacy was postponed, as a convenience to the fund, and not to the person, in which case it does not lapse. But where a legacy is charged upon a mixed fund, as in the present case, the decisions are less uniform. Hence the parties urge the nice distinction, whether the time, in the case before us, is attached to the legacy, or only to the time of payment ? This legacy appears to be created and modified in two parts of the will of Elijah Dewey. The phraseology, where it first occurs, taken alone, would seem to favour the construction put by the demurrant. But, taking the whole together, as it must be taken for every purpose of construction, it appears otherwise.
There is an absolute devise to Vanderspiegel of a large real and personal estate; then follows a proviso that he pay the legacy now sought, within twelve months after the decease of the testator, and makes the payment of this the condition of his holding his own legacy. It is obvious that the time here given for payment is the same the law would have given the executor.
Further, the true reading of the will of Elijah Dewey, as far as relates to this subject, and this only, is this. “I do hereby der vise and bequeath, one thousand dollars to my grand-daughters Sally Robinson, the wife of Stephen Robinson, and Maria Robinson, the wife of Isaac T. Robinson, children of my deceased daughter Sally Hubbell, and to Moses D. Robinson, Eunice Wright, wife of Charles Wright, and Ruth Robinson,' children of my deceased daughter Ruth Robinson, to have and to hold the same in equal shares and portions, to be paid by John Vanderspiegel ; and my will is, that he pay the same to them; that is to say, two hundred dollars to each of them, in twelve months after my decease, and that the said devise and bequest to him
Again, the facts in the bill support this position, to wit: the legacy to Yanderspiegel vested upon the death of Dewey. That legacy, to the amount of two hundred dollars, was in trust for Moses D. Robinson, but it was not payable under twelve months from the decease of Dewey, and M. D. Robinson died before the twelve months expired. His executor could claim the money in equity after the twelve months expired, and the oratrix, Catharine, takes the equitable interest, under the will of M. D. Robinson, and now claims the execution of the trust. This view would support the bill.
Upon the above reading of the will, the case in 3d of P. Wms. 173, Wilson vs. Spencer, is strong in point, to show the legacy vested in M. D. Robinson, before his decease.
So far as the nature of the fund can affect this case, it may be observed, that this does not fully come within the reason of the ordinary cases in which so great importance is attached to that circumstance. In those ordinary cases, the executors or trustees are to pay Out of a fund in which they have no interest, in any event whatever. In the present case, the trustee, if we call him such, Vanderspiegel, holds the entire fund, upon paying the five legacies of $200 each. If the legacy to M. D. Robinson should be considered as lapsed, whether it would lapse for the benefit of the heirs at law of Dewey, or sink into the fund and vest in Yanderspiegel, is not now important to decide; but probably it would sink into the fund.
To what is already said, with regard to the nature of the fund, may be added, that our statute for settling estates seems to have abolished all distinction between real and personal estate, except that the personal estate must first be used. The executor has alike control over both for the payment of debts, and the heirs have no claim for any thing but what remains after payment of debts, and costs of settling the estate. In England, the executor has no control over the real estate, and if debts remain, after the personal estate is swallowed, the creditors must call upon the heir, who receives the real estate by inheritance or devise. This entire change by our statute, renders inapplicable those decisions in England, dictated by laws so diverse from ours.
The demurrer in this case is overruled, and the cause must stand over for an answer.