| Mass. | Oct 22, 1839
drew up the opinion of the Court. The case of Shattuck v. Stedman, 2 Pick. 468, is relied upon by the plaintiff, to show that the legacy to Mrs. Waters, the wife of the principal defendant, in the will of her father Abijah Davis, was vested, and that it might be attached by the process of foreign attachment as the property of the husband in the hands of the executors of Davis.
In the case cited the testator bequeathed to his niece, Mary Childs, the interest of $ 1000, to be paid to her annually during her life, &c. and at her decease he gave and bequeathed the principal sum to be equally divided among her children, payable to them at the respective ages .of twenty-one years, with interest. The testator died in 1799. Mary Childs died in 1819. She had eight children when the testator died, and her son J. C. died before she did, and after he had arrived at twenty-one years of age. And that was held a vested legacy, and the administrator of J. C. had a judgment to recover the same.
In the case at bar the testator gave to his wife the use ot thirty shares in the Oxford Bank, “ said shares being at her decease to be equally divided between his heirs.” The distribution or payment of the principal is to be made at the death of Mrs. Davis. She is now living. Now it is wholly uncertain who will be the individuals, who are to take the remainder expectant upon the decease of Mrs. Davis. It cannot now be ascertained who will be the heirs of Mr. Davis at the time the remainder will become due and payable. There was no uncertainty in the case cited, in regard to the persons who were the objects of the testator’s bounty. They were his grand children, and the right to the legacy vested in them at the death of the testator. Now unless we can construe heirs at
We are all of opinion that the trustees should be discharged.