In re Cogswell

The Surrogate.

One of the clauses of the will of this testator is as follows: “ I give to my nephews, William and John, the sum of $15,000, to be paid to them by my executors as they shall severally attain the age of twenty-one years.” Then follows a gift over, in the event of either of them being removed by death before attaining that age.

I think that, at the death of the testator, his nephews both took vested interests in their respective legacies, subject to become divested in the event of death before their arriving at the age of twenty-one (Phipps v. Ackers, 9 Cl. & Fin., 583; Bowman v. Long, 23 Ga., 247). Says Jarman, in his treatise on wills: “Although there is no doubt that a devise to a person, if he shall live to attain a particular age, would be contingent if standing alone, yet if it be followed by a limitation over in case he die under such age, the devise over is considered as explanatory of the sense in which the testator intended the devisee’s interest in the property to depend on his attaining the specified age, namely, that at that age it should become absolute and indefeasable; the interest in question, therefore, is construed to vest[instanter ” (2 Jarm. on Wills, 5th Am. ed., 424).

As the interest of John D. R. Cogswell, under this *250will, passed- to him. from the testator before taking effect of the act of June 10th, 1885, entitled,. “ An act to tax gifts, legacies and collateral inheritances in certain cases,” I hold that that statute has no application to the case at bar.