The opinion of the court was delivered, February 19th 1872, by
Thompson, C. J.This appeal arises out of the same clause in the will of Lewis Dewart, deceased, as did the case of the appeal of Lewis Dewart, Jr., just read {postea 403), but on a different point in it.
The question is, when was the legacy in the fourth clause of the will payable ? The will settles this. It provides that it shall be payable between the ages of twenty-one and twenty-five of the legatee, at the discretion of the trustee, his father, William Dewart. Immediately, on the legatee’s arriving at that age, his father exercised the discretion given in the will, and appointed him to receive immediately, the legacy charged on the farms of the appellants. We do not think this power was changed by the clause providing for a lapse before twenty-five. That provision must be construed in subordination to the positive power given to the trustee to fix the time of payment earlier, that is to say, at any time between twenty-one and twenty-five years of age of the legatee. It must have been intended by the testator, that if not sooner paid under the discretion given,the trustee in the will, and the death should occur before twenty-five, the legacy would lapse. In this way we give effect to the entire will. In the way contended for by the appellants, the legatee would be postponed, let his necessities be ever so great, to await the lapse of the period named for the realization of the testator’s bounty. This could not have been intended, we think.
But the reason for postponement is not good. The lapse, if it occurred, would not benefit the appellants. The legacy would assuredly sink into the estate, and pass to the residuary devisee. This we said in Dewart’s Appeal, 7 Wright 825. The appellants purchased the property charged with payment of the legacy, and they knew, or might have known, for it was in the line of their title, that it was discretionary with the devisee in trust, at what time between the two periods, the first or any intermediate day he might determine, that the legacy should be paid. The time *403for payment was fixed by him in accordance with the power given by the testator, and the terre-tenants must respond. The decree of the court is affirmed, and appeal dismissed at the costs of the appellants.