No. XXVI.

MISCELLANEOUS FORMS OF PECUNIARY LEGACIES. (a)

7. During minority of daughters, 14. Bequest of legacies of 100l. and

As to vested

and contingent legacies.

(a) Whenever the time of payment of legacies is to be postponed to some future time, as until the legatees arrive at a certain age, or at any other stated period, it is important to ascertain whether the testator intends such legacies to be contingent or vested; as in the former instance, the legacies will fail if the legatees die before the time of payment, whereas in the latter case, although the legatees should die before the time of payment arrives, the legacies will be vested and then become transmissible to their personal representatives.

15. In case of the death of either of 21. Bequest to nephews and nieces,

the legatees in testator's life-
time, the legacies bequeathed to
them to go their children.

16. Bequest of legacies of 2,000l. to
each of testator's two nephews,
on their attaining twenty-one,
with cross limitations between

living at testator's decease, who

WILLS.

shall attain twenty-one, or die No. XXVI.
under that age leaving issue.

22. Trustees to invest during minority,
and apply income in mainte-
nance, &c., of minors. Power
of advancement.

them, in case of either dying 23. Proviso for substituting the issue

under twenty-one.

17. If both testator's nephews die under twenty-one, their legacies to go to testator's brother.

18. Trustees to invest until legacies
shall become payable, and apply
the income in maintenance of
legatees during their respective
minorities.

19. Power of advancement.
20. Bequest of legacies to all the
children of testator's brother.
Trustees to pay the legacies of
legatees under twenty-one or
unmarried to their father. In-

demnity to trustees. In case
of father's death, trustees to
apply legacies for children's
benefit.

of children dying in testator's
lifetime, or without acquiring a
vested interest.

24. Trust for grandsons on attaining
the age of twenty-one, and
daughters on attaining twenty-
one or marriage.

Miscellaneous

Forms

of Pecuniary

Legacies.

legacy, to be vested, and

1. I GIVE AND BEQUEATH unto (legatee's name), the Bequest of a sum of 5001. sterling, to be vested and payable to him upon his attaining the age of twenty-one years, but without any interest in payable at the meantime.

twenty-one, but without interest in the meantime.

In cases of this description, the legacy being vested or contingent will depend When legacies upon whether the legacy is to take effect upon the happening of some contingent will be vested event, or whether the bequest is immediate, but the time of payment only is to be and when delayed until those events shall take place. In the former case the legacy will contingent. be contingent, because the time of payment is annexed to and forms part of the substance of the gift (Knight v. Knight, 2 Sim. & Stu. 490; Young v. Macintosh, 13 Sim. 445), but in the latter case it will be vested; for the bequest being immediate, the postponement of payment disannexes the time from the gift, which no longer forms its essence, the legacy being debitum in præsenti solven dum in futuro, or in other words, the gift is immediate as to its vesting, although the time of its enjoyment is deferred to some future period: (Faulkner v. Hollingsworth, stated 8 Ves. 558; 2 Wms. Exors. 881, 2nd edit.; 1 Rop. Leg. 557, 4th edit.)

The legacy being to take effect at a future time, as distinguished from the As to conpostponement of the payment to some future time, will render it contingent; as tingent legacies. for example, where a testator bequeaths 100l. a-piece to the two children of J. S. at the end of ten years after his decease, such legacies will be held to be contingent, and if the legatees both die within the ten years, the legacies will fail and will not be transmissible to their personal representatives: (Snell VOL. II.

3 D

WILLS.

2. I GIVE AND BEQUEATH unto each and every the children of No. XXVI. my late deceased brother (name), the sum of 100% sterling, to be vested in or paid to them respectively, on their severally

Miscellaneous

Forms

of Pecuniary Legacies. Bequest of

to each of

children of testator's

v. Dee, 4 Salk. 414.) A legacy may also be contingent on account of the legacies of 100%. objects being only ascertainable at some particular time, as the time of division, or answering some particular description at some future period; as where a bequest was to A. to be paid at twenty-one or marriage, with interest in the meantime, but if A. died before twenty-one then the bequest was to go over to the youngest children of B., this legacy was held contingent as to the children of B., and to vest in such only as should answer that description at the time of A.'s death under twenty-one: (Daniel v. Daniel, 6 Ves. 297; Grove v. Odeli, 1 Ball & B. 449.)

brother, payable at twenty-one,

with interest in the meantime at 41. per cent.

Exceptions to the rule as to

aid

The rule with respect to a legacy being construed to be contingent when bequeathed to one at a future time, is not without exceptions; as, first, where a person bequeaths a legacy to a person on his attaining a certain age, and legacies being either gives him the immediate interest, or directs it to be applied for his contingent, benefit, the legacy will not be contingent, for the disposition of the interest will when be considered a sufficient indication of the testator's intent that the legatee at bequeathed to all events should have the principal, and on these grounds the legacy will be legatees at a treated as vested: (Hanson v. Graham, 6 Ves. 236; 1 Rop. Leg. 498, 3rd edit future period. 2 Wms. Exors., 889.) But in order that provision for maintenance may First exception. the construction of a vested interest, it must be co-extensive with the full amount of interest on the legacy: (Vaudry v. Geddes, 1 Russ. & Myl. 203); and payable out of no other fund, otherwise such provisions will afford no ground for presuming the testator intended such legacies to vest before they became due. To raise such a presumption, also, the bequest of the interest must be certain; for if the interest be as uncertain as the principal, it will not convert the latter into a vested interest; consequently, a legacy to A. when he attains twenty-one, with interest, will be a contingent, and not a vested legacy: (Knight v. Knight, 2 Sim. 490, 1 Rop. Leg. 578, 4th edit.)

Second exception.

When the

exception will not apply.

Third

exception.

Exceptions to the rule with

The exception to the rule, with respect to contingent legacies, is, when the absolute property in a fund is bequeathed in fractional interests in succession at periods which must arrive; as, to or in trust for A. for life, and after his death to B.: (Davis v. Fisher, 5 Beav. 201; see also Hammond v. Maule, 1 Coll. 281.) But this exception will not apply to cases where the principal itself is not bequeathed to the tenant for life; for if the tenant for life has only the interest or income bequeathed to him, and at his decease the principal is bequeathed to another, or if it appears from the general context of the will, that no interest in the capital was designed to pass until the determination of the life interest, the gift of the income and the gift of the principal will be construed as distinct gifts; and the bequest to the legatee will not become vested until the life interest is determined: (1 Rop. Leg. 588, 4th edit.; Watson v. Hayes, 5 Myl. & Crs. 125.)

The third exception to the above rule is, where the legacy is engrafted by way of executory bequest, to take effect on a contingent event defeating the first bequest; as where personal estate is bequeathed to A., and if he shall have no child who shall live to attain the age of twenty-one years, then to B., this interest so limited to B., although treated as contingent in some respects, yet in others it is so far vested in him in right as to be transmissible to his personal representatives, the interests of the first and second taker being considered to vest at the same time, The consequence is, that if the second legatee dies whilst the event defeating the first bequest is in suspense, his representatives will, notwithstanding, be entitled to it, if such event should afterwards take place: (Rammell v. Gillow, 9 You. & Coll. 704; Roberts v. Burder, 2 Coll. 130.) And as, on the one hand, the rule with respect to contingent legacies has its exceptions, so, on the other, exceptions are not wanting to the rule which con

WILI.S.

attaining the age of twenty-one years, but such several legacies, until such time of payment, to carry interest at the rate of 47. for No. XXVI. very 100%. by the year.

3 AND I DO HEREBY CHARGE my real estates and heredita

Miscellaneous
Forms
of Pecuniary
Legacies.

Charge of legacies on the real in aid of

trues a legacy as vested whenever the time of payment is distinct from the the personal gift; such last-mentioned rule being controlled by the intention of the testator, estate o which it is always subservient, so that if from the general context of the will t should appear that the testator meant the time of payment to be the time respect to vested legacies. when the legacy should vest, the words "to be paid," or "payable at," or other terms of immediate gift being employed in the will, will be insufficient to rebut First exception. the construction that the time of payment is to form the essence of the bequest, until which period the legacy must remain contingent, and in case of the legatee's death before that period arrives, he will take no interest in the legacy which he can transmit to his personal representatives: (Hunter v. Judd, 4 Sim. 455; 1 Rop. Leg. 557, 4th edit.)

The second exception to the rule of immediately vesting is, where the vesting Second of legatee's shares in residuary personal estate is postponed until the death of exception. an annuitant: (Pearson v. Cassamajor, 8 Cl. & Fin. 74, n. (a); 1 Rop. Leg. 560,

4th edit.)

The third exception is, where a testator has shown a clear intention that the Third legacies shall not vest until his debts are satisfied, in which case the bequests exception. will be contingent until the debts might have been paid upon a due administration of assets: (1 Rop. Leg. 560, 4th edit.; 2 Wms. Exors. 883, 2nd edit.)

A fourth exception is, where a testator has plainly and with certainty ex- Fourth pressed his intention that the legacies shall not vest until his property has been exception. sold or realized, or got in by his executors, or laid out in a purchase. For if a testator thinks proper to say distinctly that his legatees, general or residuary, shall not be entitled to the property unless they live to receive it, there is no law against such intention, if clearly expressed.

But in all these cases, to prevent the operation of the general rule of imme- In order to diate vesting, the intention of the testator that the legacies shall not vest must form an be expressed with certainty; for although the payment of the legacies be ex- exception to the pressly postponed till the testator's debts are discharged, or till the sale of an general rule, the estate be effected, or till after the residue of personal estate shall be laid out in testator's the purchase of lands, the bequests will only be treated as contingent, until such intention must be expressed time as the debts might have been paid, or the sale or purchase might have been with certainty. effected, upon a due administration of the affairs of the testator. And a Court of Equity will inquire into what that period might have been; for that court will not suffer the rights of legatees to be prejudiced by the fraudulent or unnecessary delays of executors or trustees: (1 Rop. Leg. 460, 4th edit.; 2 Wms. Exors. 884, 2nd edit.; Elwin v. Elwin, sup.)

A fifth exception is, where the event upon which the legacy is payable is not Fifth exception. certain of happening, or which the law for this purpose does not consider as certain or fixed; as upon the legatee's marriage, or his taking holy orders; which events may, or may not happen, from whence it is presumed that the expectation of one or other of such events taking place was the sole motive of attaching it to the bequest, and thus making it form its very essence: (1 Rop. Leg. 562, 4th edit.; Atkins v. Hiccocks, 1 Atk. 500.) So that whenever the event upon which a legacy is directed to be paid is uncertain as to its ever taking place, the legacy will not vest previously to the happening of that event; and in this respect it is perfectly immaterial whether the gift and the time of payment be in form distinct: as to which (see Atkins v. Hiccocks, sup.), or whether there be no gift except in the direction for payment of the legacy: Malcolm v. O'Callaghan, 2 Mad. 349), since in either instance, the taking place

WILLS.

ments with the payment of all the before-mentioned legacies, as m

No. XXVI. auxiliary fund and in aid of my personal estate, and whether the said legatees, or any or either of them, shall die before the time of payment or not.

Miscellaneous

Forms of Pecuniary Legacies.

Intention of the testator must prevail, where it is manifest that he did not intend the legacy to be conditional. As to the vesting and devesting of legacies where they are subject to a limitation over. Where the

event on which the executory limitation depends is not

expressed with sufficient clearness, it will fail, and the first limitation

become

absolute.

First gift will not be devested, unless the

event upon
which the
executory

limitation over
is to take effect
literally
happens.
In provisions
for children,
subject to a
prior life
interest, the
court leans in
favour of the

of the event is a condition precedent to the vesting of the legacy, according to the maxim that "dies incertus in testamento conditionem facit.'

29

But even this maxim must yield to the intention of testator where it is man fest it was not his intention that the legacy should be conditional: (1 Rop. Leg.ʻ 563, 4th edit.)

The effect of the vesting and devesting of legacies, when they are subject to a limitation over, has given rise to many different questions; but the general rule appears to be, that a devise over on a contingency, does not of itself and without more, prevent any of the shares of the legatees from vesting in the meantime, provided the words of the bequest be, in other respects, sufficient to pass a present interest (Skey v. Barnes, 3 Mer. 340), though such a devise over of the entirety may be called in aid of other circumstances to show that no present interest was intended to pass: (ib., and see Hunter v. Judd, 4 Sim. 455; 2 Wms Exors. 895, 2nd edit.)

And where the event on which the executory limitation depends is not clearly pointed out, so as to satisfy a Court of Equity what the intention of the testator actually is, or if understood, so as to enable it to carry that intention into execution, the bequest over will fail, and the first legatee will take an inde feasible vested interest at the death of the testator: (1 Rop. Leg. 603, 4th edit.) As, for example, suppose a testator, after an immediate gift to a legatee, should declare that if he (the legatee) die before he might have received the money, or before it might have been recovered (Wood v. Penvyse, 13 Ves. 395), the legacy shall go over to B., such intention with regard to the time at which B. is to take would be altogether so vague, that a Court of Equity would not venture to act upon it; consequently, the interest will vest in first legatee immediately, and he will be entitled to payment of it at the end of a year after the testator's death: (1 Rop. Leg. 604, 4th edit.)

But if the testator had mentioned any time which could have afforded some sort of rule to go by, and upon which the court might have acted, then his intention would have been allowed to prevail; as, if he had declared the bequest over should take place in the event of the legatee dying before he received the property, or before the fund was actually realized by the executor, in either of which cases the executory limitation would have been good: (Whiting v. Force, 2 Beav. 571; Rammel v. Gillow, 9 Jur. 704.)

And unless the event upon which a legacy is given over literally happens, the primary gift will not be devested; for where there are clear words of gift creating a vested interest, the court will never permit the absolute gift to be defeated, unless it be perfectly clear that the very case has happened, in which it is declared that the interest shall not arise. It must be determined on the words of the will, that there was a vested interest, which was to be devested only upon a given contingency; and the single question is, whether that contingency has or has not happened: (5 Ves. 209; and see Schnell v. Tyrrell, 7 Sim. 86.)

In construing either a settlement or a will in which a provision is made for children, subject to a prior life interest, the court leans strongly in favour of that construction by which the children will take a vested interest at twentyone or marriage, whether they survive the tenant for life or not; and if the instrument is incorrectly or ambiguously expressed, or if it contains conflicting or contradictory clauses, so as to leave in a degree uncertain the period at which, or the contingency upon which, the shares are to vest, the rational presumption is, that the child acquires a vested and transmissible interest at the that will give period at which it is most needed, viz., at twenty-one if a son, or on marriage er

construction