[Chambersburg,
October 25, 1824.]
PATTERSON, surviving Executor of HENDERSON, against HAWTHORN, Administrator of HAWTHORN.
IN ERROR.
After ordering ail his real estate to be sold by his executors, and the money proceeding from the sale to be put out at interest, during the life of his wife, to whom the interest was to be paid, the testator proceeded, — “ At the decease of my wife, I do allow the price of my land shall be equally divided among my two Sons, A. and B., and my daughters, C., D., E., and F., or their heirs, in six equal parts.” F., after the death of the testator, married, and died without issue, during the life of her mother, who afterwards died. Held, that the legacy was vested in F., and that therefore her husband, as her administrator, was entitled to recover it.
The defendant in error, Alexander Hawthorn,
administrator of Elizabeth Hawthorn, deceased, brought this action in the Court *113of Common Pleas of Cumberland, county, against John Patterson, surviving executor of Samuel Henderson, deceased; and, by agreement, a case was- stated for the opinion of the court, to be considered as a special verdict.
The substance of the ease was shortly this: — Samuel Henderson was the father of Elizabeth Hawthorn, deceased, late wife' of Alexander Hawthorn, the plaintiff. By his will, he ordered all his real estate to be sold by his executors, and the money proceeding from the sale, to be put out at interest during the life of his wife, to whom the interest was to be paid. He then proceeds as follows, — “ And at the decease of my beloved wife Mary aforesaid, I do allow the price of my land shall be equally divided among my two sons, James and Richard Henderson, and my daughters Ann Patterson, Lettice Sanderson, Polly Woodbury, and Betsy Henderson, or their heirs, in six equal parts.” Betsy Hendexson married the plaintiff, and died without issue during the life of her mother, who was also dead. The question was, Whether the plaintiff was entitled to recover the sixth part, which was bequeathed to his wife?
The Court of Common Pleas gave judgment in favour of the plaintiff, upon which a writ of error was sued out.
Mahon and Metzger, for the plaintiff in error,
argued, that the intention of the testator was, that the legacy should not vest, until the death of his widow; or, if it did vest, it was subject to be divested, on the contingency of his daughter’s dying without issue in her mother’s lifetime. It is analogous to the case of a portion charged upon land, which sinks into the inheritance, if the child dies before the time of payment. Where the time is attached to the legacy, and not to the payment of it, it is lapsed by death before the time arrives. Thus, if a legacy be given at twenty-one, or when the legatee attains the age of twenty-one, it is lapsed if he dies before twenty-one. 4 Bac. Ab. Legacy, 393, 394, 395, 401. Hall v. Terry, 1 Aik. 502. 3 Bac. Ab. 278. 1 Dyer, 59. Jennings v. Looks, 2 P. Wms. 276.
Hamilton and Carotkers, for the defendant.in error,
cited Bor-reton’s Case, 3 Rep 19. Hayward’s Lessee v. Whitby, 1 Bur.r. 233. Lord Paulet’s Case, 2 Vent. 366. Stapleton v. Choles, Ch. Rep. 317. Fearn, 148, 149. 2 Johns. 288. 4' Johns. 61. 8 Rep. 95, b. 2 Eq. Ab. Legacy, A. pi. 27. Kerlin’s Lessee v. Bull, 1 Dali. 175. Co. 'Lift. 237, a. (note,) 152, (2d¡ point in note.) 3 Br. Pari. Cas. 337. Barlowiv. Grant, 1 Vern. 255. Pricey. Watkins, 1 Dali. 8. 2 P. Wms. 612, (note.)
The opinion of the court was delivered by
Tilghivian, C. J.
The rule is, that where a legacy is given to a person, to be paid at a future time, it vests immediately But where it is not given until a certain future time, it does not vest until that *114time; and if the legatee dies before, it is lost. This is the rule, .but in the application of it there is great nicety, and the adjudged cases can hardly be reconciled. There are some exceptions, too, to the general rule. Where a legacy is charged on land, and the legatee dies before the time of payment, the courts have inclined to the sinking of the legacy, in favour of the owner of the land. And where a legacy is expressly given to a female for a marriage portion, and she dies before marriage, there is great reason for supposing that it was not intended to give it to her representatives. But the present casé falls within neither of these exceptions. There was no land into which the share of Betsy could sink, nor was it given to her for a marriage portion; and, if it had been, she did not die unmarried. In general, where a legacy is given for an object which fails, the legacy will be lapsed, — as, where a sum of money is given to an infant, for the purpose of binding him apprentice, and he dies before the proper age'. It is a circumstance of some weight, that there is no intimation in this will of an intent, in case of the death of any of the children before their mother, to give the shares of those so dying, to the survivors. On the contrary, the money was at all events to be divided into six parts, and paid to his six children, or their heirs. What did the testator mean by the words, or their heirs? I understand it, as if he had said, to be paid to them, or such person as would be entitled to it, as their representatives by the law of the country; that is to say, it was not, in case of the death of one, to go to the survivors, but to be considered as if vested in the deceased child. Betsy, the late wife of the plaintiff, was the only daughter who was unmarried when the will was made. The considering of the legacy as vested, would have been the most favourable construction for her, and probably most agreeable to her father’s intent; because it might have promoted her marriage, during the life of her mother, to whom the income of the whole estate was given for her support. In fact, she did marry, in her mother’s life, and died wiihout- issue. I am of opinion that the legacy was vested, and therefore the plaintiff is entitled to it, as administrator of his wife.
DuncAN, J., having been counsel for the plaintiff in error, gave no opinion.
Judgment affirmed.