The question propounded to us and argued is, *Page 118 whether an interest in the capital of the residuary estate vested, absolutely, in the legatees named and described in the twelfth clause of the will, upon the death of the testator, to be divided and distributed among them at the end of twenty years? or, whether the interest in that residue was contingent, and dependent upon the legatees being alive at the end of twenty years?
The law favors the vesting of estates; and, when a gift is made to a person in esse, it passes to the legatee, as a vested interest, immediately on the death of the testator. Jarman on Wills, 727; 2 Williams on Executors, 1051; 1 Roper on Legacies, 557. And if there be a prior gift created, determinable upon an event certain to take place, and there be a gift over upon such determination, the last gift will vest with the first, and it will be held that the possession and enjoyment of the gift is postponed, but not the gift itself. 1 Jarman, 727. It is, however, a question of intent, to be gathered from the whole will, and the construction might be varied, if from other parts of the will, it appeared that the testator intended that the gift itself should not take effect until the happening of some event in the future; and the question is always, — is futurity annexed to the substance of the gift? if so, the vesting is postponed; or is it annexed to the time of payment only? if so, the legacy vests immediately. 1 Jarman, 759, 760. And if the gift be expressly to A, and expressed to be payable or to be paid at a certain time, time is held to relate to the payment only, and not to the gift itself, and it confers a vested interest on the testator's death.
The gift here is of all the remainder of the testator's estate, real and personal. It is given to the executors, and it is declared that they shall hold it in trust for the legatees "and their heirs." The gift begins with this declaration; and it is further directed, that they shall hold it in their own possession, receiving the rents and profits and income thereof for the term of twenty years, during which time they shall annually pay to these legatees "and their respective heirs," all the income so received; and, at the end of twenty years, shall pay and divide all this residue, the capital, among the same legatees. It is further directed that they shall, in the meantime, lease for such time, and upon such *Page 119 terms as they think best, and, at such time as they may deem best, sell and absolutely dispose of all the property and convert it into money. To enable them to do this, they must have the fee simple in the whole. Hill on Trustees, 242; Villiers v.Villiers, 2 Atk. 71; Oates v. Cooke, 3 Burr. 1684; Gibson v. Lord Montfort, 1 Ves. Sen'r, 485; 2 Jarman on Wills, 204. We may ask here, as did Wigram, Vice Chancellor, in Leaming v.Sherratt, of what were they trustees? — and we may give the same answer: of the whole residue. And if we ask, again, for whom are they trustees? — the answer may properly be; for all the legatees, as the testator has declared, "for them and their heirs;" no others are named. The trustees hold for them from the death of the testator.
In Booth v. Booth, 4 Ves. 399, the residue was bequeathed to trustees, in trust to pay dividends equally between testator's nieces, B and C, until their respective marriage, and from and after their marriage respectively, to pay them their respective moieties, and it was said this was equivalent to saying, in trust to pay dividends, c., until the marriage, and then to transfer the principal; it was to be a vested interest to come into possession on the marriage. In Packham v. Gregory, 4 Hare, 396, the residuary personal estate was given to trustees to sell and invest, and to pay the interest to testator's wife, during widowhood, and upon her death to pay and divide the whole trust fund equally among all his nephews and nieces, share and share alike. It was held that the shares of the nephews and nieces vested, and that the share of one of these who died before the tenant for life, passed to his representative. See also Barnes v. Allen, 1 Bro. Ch. Cas. 181. Sir William Grant, in Leake v.Robinson, 2 Merivale, 385, commenting upon the case of Booth v. Booth, says, the whole interest was given absolutely in that case, a circumstance which has always been held to furnish a strong presumption of an intention to vest capital.
The rule of interpretation, referred to by counsel, can hardly apply to the present case, since the whole is here given to trustees for these legatees, and for them only. Had the gift been to these legatees "and their heirs," without the interposition of the *Page 120 trust, the gift must have been construed to be absolute. Roper on Legacies, 88. That a trust is interposed does not prevent the gift from vesting, in interest, in the cestui que trust. The rule referred to is, that where the gift is to be implied only from the direction to divide or pay, or to transfer at a future time, the vesting will be postponed to such time, unless the contrary appear from other expressions of the testator, implying a postponement of the possession only, and not the vesting. Williams on Executors, 1059. This is the gift of a residue, and the rule is, that such gift will be construed to be vested; and it is said that, in such case, a very clear intent must be shown to postpone the vesting, because intestacy would often be the consequence of a lapse of such gift and always may be, It was said by V.C. Wigram, in the case, of Leaming v. Sherratt, alluding to the argument in that case, and that the legatee could not claim, unless he were living at the time prescribed for payment or division, that "questions have been made whether the simple case of a direction to pay at a future time without any gift, independently of the direction, it would be transmissible, and the court have sometimes considered the time as annexed to the legacy, but there was no intent to decide that the gift of a legacy under the form of a direction to divide at a future time, or upon a given event is less favorable to vesting than a simple bequest of a legacy at such future time or upon a like event. The question in all such cases is, whether the testator intended it as a condition precedent that the legatee should survive the time appointed." He further said that "any case which holds that a gift of a residue to the testator's children, upon an event which afterwards happens, does not confer upon them a transmissible interest, merely because they died before that event, must be at variance with the authorities."
Another circumstance from which an intent to vest may be implied, notwithstanding the only gift is in the direction to pay in the future, is that the intermediate interest of the legacy is given to the same person. In such a case the implication is that the legatee is to have the principal at all events, and this because for the purposes of interest the principal is at once set apart from the *Page 121 bulk of the property. Williams on Executors, 1060; Fearne Cont. Rem. Butler's notes; Fonereau v. Fonereau, 3 Atkyns, 645; Jarman, 766; Knight v. Knight, 2 Sim. Stu. 490. In the case of Jones v. Mackilwain, 1 Russ. 220, where the testator gave the residue of his estate, real and personal, to trustees upon trust for sale, and to hold one moiety of the proceeds on trust to pay and apply the same toward the maintenance and education of any and every child of his daughter, until they severally attained the age of twenty-one years, and, upon their severally attaining that age, to pay unto and amongst them said moiety, share and share alike, it was held that the several shares vested in the children before twenty-one, so as to pass to their representatives on their death. And Lord Gifford relied upon the fact that it was a residuary gift, and that the yearly income, until the time appointed for distribution, was given to the children to whom the principal was directed to be afterwards paid. See, also, Saunders v. Vautier, 1 Cr. Ph. 240. The immediate interest here is given to the same persons to whom the principal is to go. There is, in this case, no gift over of any share, in the event of any of the children dying without issue. For want of such gift over an intestacy might be produced, an event which the testator could not have intended; and in the events which have happened, one share of this residue, unless it be held to have vested before the expiration of the twenty years, has, by the death of Mrs. Dodge without issue, lapsed, and thereby an intestacy, as to that share, has occurred. All these circumstances are enumerated in Jones v. Mackilwain, as existing in that case, and given as reasons for holding the capital vested. The Vice Chancellor said: "The whole interest and corpus is given, one way and another, to the children; the dividends to the trustees for their use till twenty-one, and then the principal is given them. It is the gift of a residue, and it is the only residuary clause. It is given to trustees absolutely. It is a gift to them for the benefit of the children till twenty-one, and at that age the principal is to go to them. There is no gift over in the event of their death. They took vested interests, though they did not attain twenty-one."
There remains another question, viz.: whether a gift already *Page 122 vested in the legatee upon his surviving the testator, and which would, under our statute, have gone in case of his death before, to his heirs, if he left any lineally descended, was made defeasable upon the event of his dying before the period of distribution, leaving such heirs. It is claimed for the children of those who died before the expiration of the twenty years, that, by the words "or to their respective heirs should any of them be dead," the testator intended that such heirs should take at all events, and that if any child should die leaving children or descendants, such children should be substituted to such deceased child as to his or her share. The strong tendency of the modern cases is, to construe the word "or" as introducing a substituted gift in the event of the first legatee dying in the lifetime of the testator, and to prevent a lapse. 1 Jarman, 453. Though this tendency be strong, it is not conclusive, and the intent must be ascertained from the whole will; and it must be remembered that the testator had declared that the capital should be to his executors in trust for these legatees and their heirs; that, for twenty years, the income should be divided annually among them and their heirs, giving them an absolute interest. Did he, by this language, design to make it defeasable, and that the children of the legatees should take at all events, if there were children? and were they special objects of his bounty? There is nothing in the preceding part of the clause to indicate that he so regarded them. There is no provision in any other clause for the children of any child then living, except that which devises to the separate use of two married daughters, to the exclusion of their husbands, and if the testator designed that such should take this residue, it is against the general spirit of this will. We naturally ask, if such was his intent, why did he not also provide for the case of one dying without issue, and give it over to the issue of the others, and not leave it to pass to his personal representatives?
The sixteenth clause of the will is supposed to throw much light upon the meaning of the twelfth, and it is invoked with equal confidence on either side. The testator seems to have apprehended that, from the language used in the twelfth clause, *Page 123 some conclusion might be drawn that he had designed a disposition of the residue different in some respects, which he does not state, from any which he actually intended, and to have been anxious to exclude any such conclusion. It may be he apprehended some such inference from the use of the words "share and share alike." But whatever it was, this clause was intended to remove it. The clause begins with a statement of the mode in which the testator understood he had disposed of the residue, the principal, viz.: so that the income should be divided equally and among "my children, my grandson and the children of my daughter, Mary Ann, taken collectively. and to their heirs," using here no words of substitution, or words indicating that a substituted gift was or had been contemplated. He says nothing here of division of capital, but it is evident, from what follows, that he supposed he had directed the division of the capital in the same way, for he proceeds to give the same explanation as to both, and says that he does not mean that the children or heirs of his children, or any one of them, should take more than, or other than, the share of their parents, or which the parent would take, that is possess, if living, and only the portion of the person from whom they take or inherit. He declares that the divisions are to be made per stirpes and not per capita. In the twelfth clause he had called the share given to the children of his daughter, Mary Ann, "their mother's portion." He seems to have contemplated a division of his estate into ten shares, that being the number of his children, including those then living and those who had deceased, leaving children, and to have regarded each child as a stirps or stock of descent. Without, as we think, infringing any settled rule of construction or any series of authorities, and looking at the intent of the testator as collected from the whole will, we are of opinion that the several shares in the residuary estate vested in the several legatees, on the death of the testator, absolutely in fee simple, to be paid out and divided amongst them at the end of twenty years; and that the heirs or children of such as might die before the expiration of that time were not to be substituted to the parent. The interest which the legatees took, therefore, was an interest which *Page 124 was assignable during their lives, devisable by their last wills and testaments, and, upon their dying without issue, transmissible to their representatives. The result is, that none of the children of any of the legatees are entitled to claim any portion of this residue as purchasers; that the share of James D'Wolf, Jr., having been assigned in his lifetime to the trustees of the fund, for the benefit of the other cestuis que trust, is sunk into that residue; that the share of Mrs. Lovett, having been assigned by her in her lifetime to J.R. Bullock, and by him to the trustee for the benefit of the other cestuis que trust, is also sunk into the residue, and that the shares to be divided are thus reduced to eight. Of these, the children of the testator's daughter, Mary Ann, are entitled to one share; James F. D'Wolf is entitled to one share, subject, however, to a mortgage made to Henry Wardwell; the legal representatives of Mark Anthony D'Wolf, deceased, whose executors are Sophia C.V. D'Wolf and Byron Diman, to one share; the legal representatives of William Bradford D'Wolf, whose executors are Mary R. D'Wolf and William R. Taylor, to one share; the legal representatives of Nancy B. Homer, whose executor is Franklin Evans, to one share; the legal representatives of Harriette D'W. Hall, whose executor is Charles E. Butler, to one share; Byron Diman, the assignee (through Mark A. D'Wolf) of William H. D'Wolf, to one share; subject, however, to the lien by mortgage made by said William Henry to the Bank of Bristol on one-eighth of the stock in said bank; Andrew J. Davis, assignee of Catharine Davis, through Hatch, to the remaining share; subject to a mortgage to Joseph Smith, whose executors are Charles Smith, James M. Eddy and Nathaniel P. Smith; and to a mortgage to Mark A. D'Wolf, deceased; and to a mortgage to Joseph M. Blake, now held by William Bradford; and the New Hope estate has ceased to be trust property, having been conveyed, with the assent of all parties interested, to Mark Anthony D'Wolf. *Page 125