The opinion of the Court was delivered by
Kennedy, J.Admitting the legacy claimed by the plaintiffs to be vested, as it has been contended it is, yet it is clear, unless there be a sufficiency of assets to meet the payment of it, after satisfying all the preferred devisees and legatees, according to the clear and unambiguous meaning of the will, that the plaintiffs cannot recover. Before the legacy in question should be paid, it is perfectly manifest, the testator intended, after giving several pecuniary legacies to be paid out of his estate, that each of his four children, then living, should have a portion of the residue thereof, equal in value, at least, to £10,000, and that his five grandchildren named in his will, should also have jointly a like portion of equal value. For, after thus giving to each of his children a portion of his estate equal in value to £10,000, and a like portion thereof to his five grandchildren jointly, each of which portions he calls a fifth part of his estate, he says: “Should it appear to my executors that the legacies, or such fifth part of my estate, shall, after paying off and discharging all debts due from me, amount to the said sum of £10,000, then, and in that case only, my will is, that if the surplusage of my estate is sufficient therefor, that the following legacies be paid, so soon as the said surplusage can conveniently be obtained for that purpose. Item: I give and bequeath to the Contributors of the Pennsylvania Hospital the sum of £300,” &e The plain, and, indeed, the necessary inference is, that in case it should appear otherwise to his executors, then the £300 claimed by the plaintiffs were not to be. paid. From the case here, as stated, it seems that upon the death of the testator, and for at *97least fifteen years afterwards, it did not only appear otherwise to the executors, that the estate was of insufficient value to yield portions to each of his children of the value of £10,000, but was so in fact. It is, however, alleged, that the estate, which consisted, at the death of the testator, chiefly of .wild and uncultivated lands lying within the state, has increased, by mere lapse of time, so much in value, as to be amply sufficient to allow to each of the four children £10,000, and to the grandchildren jointly £10,000, and leave a surplus sufficient to meet the payment of the legacy in question, as also the other legacies given on the same condition. But certainly it cannot be supposed, that the testator intended the legacy in question should be paid if the estate which he should have, at the time of his death, should ever become, at any time thereafter, of sufficient value to afford his children and grandchildren their respective portions then, and leave a surplus sufficient to pay the legacy given to the plaintiffs. He certainly has not said so in his will; and it is equally certain that he never could have meant that it should be so. But it is contended, although such may not have been his meaning, yet as no division has been made of his estate among his children and grandchildren, by appraising and setting off to them severally their respective shares, that it is reasonable to infer, that the testator had the time, whenever it might happen, that this appraisement and division of his estate should be made among his children and grandchildren, as directed in his will, in his view as the time when it should be determined, from such appraisement, whether the legacy claimed by the plaintiffs should not be paid. And although no such appraisement has as yet been made, yet, inasmuch as it is admitted that the estate is now of sufficient value to admit of the legacy claimed by the plaintiffs being paid out of it, they are entitled to recover. This inference, however, would seem to be contrary to what must be considered the general intent of the testator, when we take into view the relation in which the principal devisees and legatees named in his will, stood to him. That it was his wish, that each of his children, and the grandchildren named in his will, should participate in the benefits that might be derived from the actual enjoyment of their respective portions of the estate allotted to them, cannot be questioned. Some of them had at most but a life-estate given to them; and unless we can believe that he was wholly indifferent whether they should ever derive any benefit from what he intended most clearly they should have, it is impossible even to suppose that he designed to defer the time thirty-two or three, or even fifteen years, after his death, before it should be determined what particular part of his estate each should have, and whether the whole thereof would be of sufficient value to admit of the payment of the legacy demanded in this suit. Whether his estate should be sufficient for this purpose, was a matter which he seems to have left to the judgment of his execu*98tors; for he says: “ Should it appear to my executors, that the legacies, or such one-fifth of my estate, shall, after paying off and discharging all my debts due from me, amount to the said sum of £10,000, then and in that case only, my will is, that if the surplus-age of my estate is sufficient therefor, that the following legacies (including the legacy in question) be paid.” It is clear, from the language employed here, the testator’s wish was that as soon as all his debts were paid out of his estate, his executors should then determine whether the remaining part of it was sufficient to afford the portions allotted to his children and grandchildren, and leave at the same time a surplus sufficient to satisfy the legacy in question. Now the testator knew that' the utmost length allowed by law to his executors, for the purpose of paying his debts and settling their administration account of his estate, was one year. It is therefore reasonable to conclude, that he did not intend that the time at which his executors should determine, whether the legacy could be paid or not out of his estate, should be deferred beyond the year. And had it appeared then to the executors, to be of sufficient value to have admitted of the payment of the legacy out of it, according to the direction of the will, a subsequent depression in the value of the estate would not have affected the plaintiffs’ right, I apprehend, to demand and x-ecover their legacy. So on the other hand, as I apprehend, they have no right to claim payment of it, because the estate has risen since in value so as to admit of its being paid, after setting off five‘portions thereof for the children and the grandchildren, of the value each of £10,000.
The end of the first year, therefore, after the death of the testator, must be regarded, we think, as thé latest period allowed for making an estimate of the value of the estate, and for dividing and apportioning it among his children and grandchildren, as his devisees and legatees; and although this Was ’ not done at that timé, it is necessary, in order to do equal justice to all concerned, according to the true intent and meaning of the will, to consider it all as having been done at that time. And it being perfectly clear, if it had been done then, that the plaintiffs would not have been entitled to claim anything, because there was nothing remaining agreeably to the tenor of the will out of which it could be paid, the judgment must therefore be entered for the defendant.
Judgment for the defendant.