Rector v. Dalby
71 S.W. 1078
Mo. Ct. App.
1903
Check Treatment
BROADDUS, J.

It is claimed by plaintiff that, where the testator gives a legatee an absolute vested *193interest in a defined fund, so that, according to the ordinary rule, he would he entitlеd to receive it on attaining Ms majority, but by the terms of the will payment is postponed to a subsequent period, for instance, until he attains the age of twenty-five yeаrs, the court will, nevertheless, order payment on his attaining Ms majority, for at that age he has the power of charging or selling it, and the court will not subject him to the disadvаntage of raising money by these means when the thing is absolutely Ms own.

In Saunders v. Vautier, 4 Beav. 115, it was held: “"When a legacy is directed to accumulate for a certain period, or where the payment is postponed, the legatee, if he has an absolute indefeasible interest, is not to wait until the expiration of that period, but may require payment the moment he is competent to give a valid discharge.” In Rocke v. Rocke, ‍​‌‌‌​​​​​‌‌‌​​‌‌​​​​​‌​​​​​​​​​‌‌‌‌‌‌‌​‌​​‌‌​​‌‌‍9 Beav. 66, it was held that where “an absolute vested bequest was accompanied with a direction that it should not be delivered until the legatee attained twenty-five, that he was entitled to payment on attaining twenty-one. ’ ’ See also Young’s Settlement, 18 Beav. 199; In re Jacob’s Will, 29 Beav. 403. In Dado v. Maguire, 71 Mo. App. 641, it was held that a legatee who has an absolute vested interest in a fund, the payment of which is postponed, by the will devising the fund, to a period beyond Ms majority,'may, on attaining Ms majority, obtain an order for its payment, notwithstanding such postponement. ’ ’

On the other hand, our attеntion has been called to the ease of In re Fair, 103 Cal. 342, wherein the testator willed all Ms estate, both real and personal, to trustees for the payment of dеbts and certain legacies, to be held and possessed by them, with certain ‍​‌‌‌​​​​​‌‌‌​​‌‌​​​​​‌​​​​​​​​​‌‌‌‌‌‌‌​‌​​‌‌​​‌‌‍powers and directions. Among bis legatees were James Graham Fair and Charles Lewis Fаir. The respective bequests to these two sons, were as follows: “I give and be*194queath to my son James Graham Pair the sum of five hundred- thousand dollars, and direct the same to be paid to him when he shall have attained the age of thirty-five years, but not before then, and that in the meantime there shall be paid to him monthly the sum of five hundred dollars. ’ ’ And a like sum was bequeathed to Charles Lewis Pair, to be paid him when he attained the age of thirty-five years, but not before, and a like sum to be paid him monthly. The will further рrovided that in case either of said sons should die without wife or lawful issue surviving him, the portion allowed him was to be paid to the surviving brother, if living; if not living, then to his surviving wife or lawful issue, if any. And that in сase both said sons should die without wife or lawful issue surviving them, then their portions were to go to his two daughters who had received' certain other bequests under the will. James G. Pair died before he attained the age of thirty-five years, without a wife or lawful issue surviving him, whereupon Charles L. Pair- claimed payment to himself of his deceased brother’s legacy under the will. This claim was denied, the court holding that as survivor he was not entitled to the payment of the legacy given to his deceased brother immediately upon his death, and that such legacy was not payable until, by the terms of the will, it would have been payable to the deceased, if he had lived. One of the grounds for the holding of the court in that case was that the will devised the entire estate to trustees, to be held and possessed by them, with power to sell and dispose of it, and reinvest the surplus for the best interest of the estate. And upon the further ground that the estate in controversy was a contingent estate depending upon the deаth of his brother, James G. Pair, without a wife or lawful issue surviving him.

We do not think that case is the same upon principle with this.

*195In Gawler v. Standerwich, 2 Cox (Eng.) 15, it was held, under the facts, that the legacy in question was not a vested legacy, the legatee having died before the time of payment. The ruling of the court seemed to have been based on that found in Boycot v. Cotton, 1 Atk. 555, where it was held as settled ‍​‌‌‌​​​​​‌‌‌​​‌‌​​​​​‌​​​​​​​​​‌‌‌‌‌‌‌​‌​​‌‌​​‌‌‍law that a portion “charged upon land to be given whether with or without interest, if the person dies before the age at which it becomes payable, it shall sink into the estate.” That ■case is also different from this in that the legacy did not pass to the heirs of the legatee but sank into the estate.

In Claflin v. Claflin, 149 Mass. 19, the court in speaking of a similar bequest to Adelbert E. Claflin, uses the following language: “There is no doubt that his interest in the trust fund is vested and absolute, and that no other person has any interest in it, and the weight of authority is undisputed that the provisions postponing payment to him until some time after he reaches the age of twenty-one years would be treated as ■void by those courts which hold that restrictions against the alienation of absolute interests in the income to trust property are void.” But the court refused to follow the rule thus laid down because of the opinion entertained that such rule would be contravening the intention of the testator.

But the contention of the defendants here is, that in order that the rule should apply, the legacy must be payable out of the personal property and not chargeable upon real estate. It is not shown why there ■should be any reason for such distinction in its application. It seems to us that it is the nature of the estаte and not the character of the property itself that governs. And in our opinion it can make no differ•ence whether the property charged with the lеgacy is real or personal. We must consider the terms of the •devise, and not the distinction between the general law .governing real and personal proрerty.

*196And we can see no force in the contention that a legacy must be paid ont of a specific fund, without any one else being interested therein, or аny contingencies whatever existing, for the reason that the fund in this case is specific and definite, viz., three thousand dollars. It is true that the testator died without leaving any рersonal estate, and the legacy thereby became a charge against the real estate in controversy, but that fact did not make the residuary legаtees interested in the legacy in question. The legacy must be separated from the residue of the estate, if it is to yield an income as provided by the will. It seems tо have been the intention of the testator that the specific sum of three thousand dollars should ‍​‌‌‌​​​​​‌‌‌​​‌‌​​​​​‌​​​​​​​​​‌‌‌‌‌‌‌​‌​​‌‌​​‌‌‍be taken ont of her estate by the trustee and utilized so that it would accumulate an income. The estate of the defendants Bouldin and Thompson, as residuary legatees, are postponed to that of the legateе. They can have no interest in the trust fund charged against the estate, but only an interest in the residuary estate, if any, and it is no argument against the plaintiff’s demand that if she takes her legacy now it may have the effect of depreciating the residuary interest, for at all times since the death of said testator the legacy was due and payable to the-trustee. And if the trust is to continue or to expire can make no difference as the legacy must be paid out of said estate, either tо the plaintiff or the trustee.

It is further contended that the rule invoked by the plaintiff can have no application in cases of active-trust. If such be the rule it cаn have no application here. In the Massachusetts case, supra, a dry trust, was defined as that where the purpose of the trust is accomplished. Therefore, an active trust would be a subsisting continuing trust where something had not yet been completed which was the original purpose giving rise to its creation. But it follows, as a necessary sequencé, that if plaintiff’s theory of the law is sound, the trust in question is a dry trust, and the purpose of *197its creation having been accomplished the officе of the trustee is functus officio, and the plaintiff is entitled to the fund.

As was said in the Claflin case, ante, the weight of authority is in favor of the plaintiff’s right of recovery, and as we are not convinced by the reasons givеn in that case for a ‍​‌‌‌​​​​​‌‌‌​​‌‌​​​​​‌​​​​​​​​​‌‌‌‌‌‌‌​‌​​‌‌​​‌‌‍different ruling, we having concluded to adopt the plaintiff’s theory, as it seems to be supported not only by the greater weight of authority but also by that of sounder reason.

Cause reversed and remanded.

All concur.