This case appears to us to be free from difficulty, whether we regard the circumstances under which the will was made, the intention of the testator, or the authorities.
When the will was drawn, the house and lot which the testator devised to the defendant, his second son, was underlease, the last period of which, he mentions to be on the 15th May 1767. To his widow he devises thereout, an annuity of ‘I'll, per annum, during her life, and to his daughter Elizabeth 450i.; but the house being under lease, perhaps at a great under value, he deemed it expedient not to be subject the defendant to the payment of part of his sister’s legacy, until three months after the lease would expire, and of the residue, until three months after the annuity of 27i. would cease. Evidently the postponement of the payments, arose from the peculiar situation of his property.
The intention of the testator is also clear, that he meant his daughter Elizabeth, should have a pure vested interest in both sums, at the time of his death. “ The sums devised, shall be at her disposal, and she may give the same to whom she thinks proper, in her life-time.” These expressions would be idle and superfluous,unless the father intended the money, as subject to her control, before it became due.
*369The great ingredient in the case, is the devise to Elizabeth Massey. The law formerly was, as contended for by the defendant’s counsel, but it has undergone sundry modifications, and is now perfectly ascertained on the present subject.
The rule about conditions has been long thought too much strained, and therefore is not much relied on in the latter cases. 1 Bro. Cha. Rep. 123. Almost all the authorities are collected in 2 Vms. 612, (Cox’s note ) and the law is accurately laid down in Hargrave’s note to Co. Lit. 237, a. as follows: — In general where a legacy payable at a future time, is charged on personal estate only, if the legatee dies before the day of payment, his personal representative will be entitled to it. But where it is charged on real estate, it sinks into the land for the benefit of the owner of the inheritance. Yet wherever there are any circumstances or expressions in a will from which the implication that it was the testator’s intention to make it immediately a vested legacy, is stronger than the implication to the contrary,which arises on its being charged on a real or mixed fund and payable at a future day, it is to be considered as a vested and transmissible interest, notwithstanding those circumstances. The rule in Powlet’s case is merely a rule of construction, not a positive rule of law or equity. A legacy out of real estate, to be paid within 12 months after the death of A; the legatee survived A but one month, and it was decreed that the legacy did not lapse, but went to the representative. 1 Vez. 44. Hodgson v. Rawson.
The rule laid down in the cases cited from 1 Bro. Cha. Rep. will apply to the construction of the willjiefore us; and there can be no reasonable ground to doubt that the will was penned with reference to the circumstances of the testator’s estate, and not to the person of his daughter. It is also certain that the intent of a testator will control the rules contended for by the defendant, (2 Atky. 127. 1 Vez. 47. Vid. Comy. 716, 723,) which is here manifest from the legacies being subjected to her disposal, and therefore the daughter took a present interest. The same will which vested the lot of ground in the defendant, vested it with the charge, and the devisee must take it cumonere.
Judgment for the plaintiffs.