I deem it entirely unnecessary and unimportant to consider whether the bequest of the twenty-*511five thousand dollars to the daughters, payable at the age of twenty-five years, is vested or contingent.
This is not the question upon which the case is to be determined. The question is, whether the limitation over to “ lawful issue, living at the time the payment would have been made to such child,” (in the event provided for) is a valid ex-ecutory bequest to such issue 1
I consider it is beyond a doubt that the legacies to the daughters are such as the law deems vested in interest from the death of the testator; and it was certainly competent for the testator to provide a substitute to take in the event of death before they were to vest in possession; and that event having happened with respect to Louisa, (Mrs. Stewart,) the substituted legatees become entitled. These legatees are persons who are certain and definite, namely, her children who were living at the time she would have attained the age of twenty-five years. The right to this bequest of twenty-five thousand dollars, which was in their mother, had she lived, became divested by her death, and was transferred, by force of the gift itself, to such of the children as were living at the time the payment would have been made to the mother. (See, for the law on this subject, 1 Roper on Legacies, 403, 404.)
The complainant has not, either as husband or by virtue of marital rights, nor as administrator of his wife’s estate, in my judgment, the least title to receive this money. It belongs to his children ; but, as their general guardian—and in that capacity only—it may be paid to him.
The decree will adjudge that this twenty-five thousand dollars belongs to the children eo nomine, and that the executors are at liberty to pay it to the complainant upon his receipt as their general guardian. This, indeed, it appears, by the answer, these executors (defendants) were willing and repeatedly offered to do prior to the filing of the bill: neither they nor the estate ought, consequently, to pay the costs of the suit. The complainant must bear them out of his own pocket.