The opinion of the Court was delivered by
Huston, J.There is no doubt of the general rule, that if a legacy is given, and afterwards said it shall be paid at 21 or marriage ; but if there is no distinct gift of the legacy, but the time *376of payment is annexed to the gift, as “ I give $ at 21 or marriage,” and legatee dies before 21 or marriage, it is gone.
It is also a rule, as general, that the intention of the testator is to be carried into effect. Now, if we reflect on the infinite variety of expression indicating the same intention, we will not be surprised to find some apparent difficulty in the cases. The intention is to be collected from the whole will. It is not easy to find any substantial difference between “ I give to each of my daughters $1000, payable out of my land,” and “ I charge my land with $1000 for each of' my daughters.” The intention that each daughter shall receive $1000 from the devisee of the land, is as apparent in one form of expression as in the other. Construing the will by the plain intention of the testator, the one and the other form of expression mean the same. But we are told by the appellant that this $5000, that is, $1000 to each of five daughters, is divided into yearly payments of $333.33 to the eldest when she ax-rives at the age of 21 years; and the same sum when she arrives at the age of 22 years; and the same sum when she arrives at the age of 23 years; and the payments to each of the other daughter's are to be made at their attaining the age of 21, 22, and 23 years. And it is contended that thex-e is another rule, viz. that altíxough a legacy to be raised out of personal estate would vest, yet where it is to come from real estate, and the legatee dies before she arrives at that age, it is not to be raised, but merges in the real estate for the benefit of the heir at law, or the devisee of the land. I admit we find such a rule in the English authorities, and sometimes in our own books — but in both countx-ies there are many exceptions; and some of these are reduced to classes of cases, and the exceptions are supported by as high authority as the general rule. I shall not state all these exceptions; but one of them is— If the time of payment is postponed, not on account of the minority of the legatees, but for the benefit of the estate, or of the devisee of the land, the legacy does not sink or merge in the land. Now, if each daughter was to x-eceive her whole $1000 on attaining 21, it might be said the payment was postponed until that period, because the testator supposed her not capable of managing her portion before that age; but at 21 she gets but one-third of hex-legacy, and the same sum, without intex-est, at the period of her attaining 22, and again 23. Now, this could not have been because she was not capable of managing it while a minor. It was not so ordered for Ixer benefit. It could only have been for the ease and benefit of the son, to whom the land chax-ged with these legacies was devised. That in this case the times of payment were postponed for the ease and advantage of the son, is so apparent, that it cannot admit of doubt. The case, then, comes within this well established exception to the general rule. For authorities, I refer to 2 Yeates 368, 9; 4 Rawle 451; 2 Atk. 127; a case decided and affirmed on a bill of x-eview, Ibid. 130; and the *377cases cited in the notes to Sanders’s edition of Atkyns; Emes v. Hancock, (2 Atk. 507); 1 Roper on Leg. 436; and cases there.
The judgment is affirmed, without recurring to, or asking support from the good sense of what has been said by more than one judge in this state, that the desire of keeping the estate in the oldest son, has no place in the laws or feelings of the inhabitants of this state.
Judgment affirmed.