Meyer v. Eisler

29 Md. 28 | Md. | 1868

Bartol, C. J.,

delivered the opinion of the court :

The decision of this appeal turns upon the true construction of the residuary clause of Godfrey Meyer’s will. The testator died in July, 1848; Elizabeth, one of his children, married John Rose, the appellee, and died in September, 1861, before Clorinda, the youngest child by the second marriage attained the age of twenty years, which did not happen till December, 1863. The whole contest in the case, is as to the rights of John Rose as surviving husband of Elizabeth ; and presents the question whether under the residuary clause of the will, the children took a vested interest in the property devised to them ; or whether their interests were contingent and to become vested only at the expiration of twenty years after the testator’s death, or upon his youngest child arriving at the age of twenty years whichever should first occur.

In Snively v. Beavans, 1 Md. 208, an estate was devised to G. M. Watkins, the brother of the testator, in the event of the testator’s two sons dying before they arrived at twenty-one years of age, he paying to testator’s wife $1,000. It was held that the legacy to the wife was a vested interest, and though she died before • the contingency happened upon which the. devise to G. M. Watkins was to take effect, her personal representatives were entitled. The court said, (page 222,) “ the law is said to favor the vesting of legacies, and hence to defeat a bequest of this kind, it must appear from *the nature and circumstances of the case, that the time of payment was made the substance of the gift, and that the testator meant that time as the period when the legacy should vest.” In Waters v. Waters, 24 Md. 444, 455, this court recognized and applied the rule of construction which favors the vesting of estates, citing with approbation the language of Mr. Jarman, as correctly stating the law on the subject. That learned author vol. 1, 727, states the general rule to be “ that where a testator creates a particular estate, and then goes on to disposie of the ulterior interest, expressly in an event which will determine the prior estate, the words descriptive of such event, occurring in the latter devise, will be construed as referring merely to the period of the determination of the possession or enjoyment under the prior gift, and not as designed to postpone the vesting.”

The case before us comes under this general rule. Many authorities might be cited in support of this ancient and well established rule of construction. In Boraston’s Case, 3 Coke, 19, “ a testator devised land to A. and B. for eight years, and after the said term, the land to remain to his executors for the performance of his will, till such time as H should accomplish his age of twenty-one, then to him, his heirs and assigns forever.” H. died under twenty-one, it was held that the remainder to H. was vested and not contingent upon his arriving at the age of twenty-one. This decision has since been invariably followed, and settles the construction of the will before us. We refer also to Doe v. Ewart, 7 Ad. & E. 636; Doe v. Prigg, 8 B. & Cres. 231; Edwards v. Symonds, 6 Taunt. 213. The rule is, if the legatee be capable of taking, “ no mere postponement of the time of payment, will prevent his having a vested and transmissible interest.”

Here there is nothing on the face of the will to indicate the intention of the testator to postpone the vesting of the estate till the happening of the event named; that is not of *the substance of the gift, but points merely to the period of possession or enjoyment. Mrs. Rose having at the time of her death a vested estate in the share devised to her by the will, the rights of her husband, John Rose, the appellee, are determined by the Code, Art. 45, sec. 2, which provides that he “ shall have a life estate in her real property, and her personal property shall vest in him absolutely.”

A decree will be passed affirming the order of the Circuit Court and remanding the cause for further proceedings.

Order affirmed and cause remanded.