In reading the will of Mr. Andrews, .we cannot escape the conclusion that he desired, after providing for his wife, to give each of his children an equal share in his property. He died in 1881,. and. his will was admitted to probate in 1882. He left five children, Dora li-ussell, wife of complainant, and W. D. Andrew's, both of whom were over, the age of twenty-one years, and three others, who were minors, ranging from three to fourteen years. It would seem he was a man.of considerable property, and it does not appear he was involved in debt. He committed his entire estate to his executrix, who was his wife, and to his executor, W. D. Andrews, who was his son, for the purposes specified in his will. In the third paragraph he directed that his daughter, Dora, and her husband, the complainant, should move into and occupy his residence, which he devised to them, together with 80 acres of land attached, to be occupied by them until his executors should acquire from the net income of his estate the sum of $1,200, which they were directed to invest in another home for them, when the rights of each in the home tract should cease. But, it -was directed that. the title to this new home should be so taken, that his daughter, Dora, should have only a life estate therein, and at her death it was to go to her children. , • ■
By the fourth paragraph, his executors were to keep all his estate, both real and personal, together, to manage and control the same as they, thought best,, to cultivate and sell crops, to sell or dispose of any of his estate, real or personal, if they deemed it advisable to do so, and ■invest in other property, taking titles in their names. They were authorized to spend so much of the income, rents and profits, in .clothing and educating his minor children, and such part to carry out the other provisions of his will, as was necessary for such purpose, and until his said children should marry, or the youngest should arrive at the age of twenty-one years. His youngest ■child was only three years old at testator’s death. ' ’
By the sixth paragraph, he directed, that when and as his children, not then of age, or married, should- arrive at the age of twenty-one or marry, his executors should *200pay them respectively $1,200, as they might be able to do so, out of any net surplus money they might then have on hand uninvested, arising from the rent, income and profits of his estate, for which, on final 'settlement and distribution of his estate, his children should account, as advancements, with interest from the time they received it, respectively. The $1,200 invested in a new home for his daughter, Dora, was to be regarded as an advancement to her.
By the seventh paragraph, he directed, that when his youngest child arrived at the age of twenty-one, or when all of his children had married, his executors should sell all his real and personal property, except ;the home he had directed to be provided for his wife (unless she was then dead), for cash or part cash or on credit not exceeding two years, the money to be distributed between his wife, who was to receive a child’s share and not less than $5,000, and his children, — including Dora and William, — the shares of each to be equalized by accounting for advancements and interest thereon by those who had received them.
Paragraph 11 of the will reads: “And it is further expressly provided, that if my said daughter, Dora Russell, should die and not leave surviving her any' child or children, then and in that event the share of my estate herein provided for her shall revert back and become a part of my original estate, and shall be distributed among my heirs (meaning children) required by paragraph seven of my will.”
The purpose of- the testator towards his daughter, Dora, as well as towards his other -children, as has been stated, is manifest, — that she and they, each, on final distribution -of his estate, should receive an equal share. It appears that the $1,200 which was to be invested in a new home for Dora, by way of an advancement to her, was . never made, nor does it appear that the $1,200 advancements provided to be made to the other children, out of the rents, incomes and profits, were ever made. It may be presumed the accumulations in the hands of the executors did not enable them to make these advancements as provided; but this fact did not in anywise *201impair the right of the several children to share equally on general distribution. This is .made clear by .the 7th paragraph, providing that when advancements that might be made to each, with interest thereon, were made equal, the balance was to be distributed between the children, share and share alike. Other provisions also manifest this intention. The important question in the case is, whether the legacies of the children were, under the provisions of the will, vested or contingent. If vested, the shares of each child, on its death, intestate, descended to those entitled, under the statute of distribution of the State. — Code, §§ 1453-1462. “The general rules for determining whether a bequest is vested or contingentare, that where the time of division.or payment is of the substance of the gift, then the* legacy is contingent; when time is mentioned only as a qualifying clause of the 'payment or division, then the legacy is vested. A second rule is, that the law. inclines to regard legacies as vested, rather than .contingent.” — High v. Worley, 32 Ala. 709. In the case cited, the estate of the testator was committed to the executor- to be held and retained by him, — to quote the language . of , the will, — “for the use and support of my wife, and children * * * untii nay daughter, Fanny Ann, shall arrive at the age of -sixteen years; then to be sold and the proceeds equally divided between" my wife and children, share and share alike.” The legacies were held to be vested. -
The same principle was stated after mature consideration in the case of Marr v. McCullough, 6 Port. 507, in substance, that legacies payable after the death. of. the testator, are either vested -or contingent, and- when the testator annexes time to the payment only, the .legacy •will be vested, but if to the gift itself, it will be contingent. To the same effect is McLeod v. McDonnel, 6 Ala. 236, a case similar in its essential features, with the one in hand. These decisions have since been repeatedly approved and followed. — Wynne v. Walthall, 37 Ala. 42; Phinizy v. Foster, 90 Ala. 262; Bethea v. Bethea, 116 Ala. 265.
It is shown that Dora, at her death in 1885, left'an only son, James Alfred Bussell, who died in August, 1895. It also appears that Alfred Andrews, was the *202testator’s youngest child, and he reached the age of twenty-one on March 22d, 1897, and has -never married. By the terms of the will, the latter named date is the one fixed when the executors were to sell the testator’s estate and divide the proceeds of the sale among his children. .
■ Taking all the provisions of the will together, we are led to the same conclusion reached by the chancellor,— that the testator did not intend that there should be an intestacy of Bora’s share of his estate, if she died leaving a child or children, before the youngest child of testator arrived at twenty-one years, or all his children had married, but that in such case, her surviving child or children should take the share of the deceased mother. James Alfred Russell, on his mother’s death, became entitled under the will to her share in the testator’s estate, and the complainant, his father, became entitled by inheritance under the statute to the share of said Alfred.
The $1,200 to be invested in a home for Dora, was contingent. It was never made for reasons not fully appearing, and was rendered impracticable of execution by the death of Dora. This provision, may, therefore, be treated as though it had not appeared in the will, and what now remains in the hands of the executors must be distributed amongst those entitled without reference to •said provision. The complainant, as we have heretofore held, if he should live until such time, had 'the right to occupy the house and 80 acres of land, as.-provided by section 3 of the will, only until the arrival of one- of the alternative periods fixed by the will for the sale and distribution of the.testator’s estate. — Russell v. Andrews, 120 Ala. 222.
Rhett Andrews, one of the testator’s sons, a minor who never married, died in 1887. This was after the death of his sister, Dora, and before the death of James Alfred Russell, her son. His interest descended to his surviving brothers and sisters, and to said James Alfred. On the death of the latter, the complainant, his father, inherited under the statute, the interest of his said son in the share of said Rhett in the estate of the testator.
*203Tlie decree of the chancellor overruling the demurrer to the bill is affirmed.
Affirmed.