Kelso v. Dickey

The opinion of the Court was delivered by

Sergeant, J.

1. In the events that have occurred, Elizabeth, the daughter of the testatrix,'having arrived at the age of 21, was entitled to receive the interest on the amount of her share of the estate which was sold. As to the principal and the interest after-wards accruing upon it, the right depends on the construction to be given to the provisions of the will that follow. “ And in case she lives unmarried to the age of 25 years, then the whole amount, principal and interest, to be paid to her; or, the whole amount to be paid to her on the birth of issue. But in case she dies before the age of 25, or without issue born, then to be divided” amongst the testatrix’s sister and two brothers. She married and died without issue after the age of 21, but before arriving at 25, and now the legacy is claimed by her surviving husband, who contends, that by the general intent, and by necessary implication, she was entitled to the bequest in case she married before 25, though she had no issue. But this, we think, would be a strained implication, and would carry the bequest to the husband contrary to the intent of the testator, which would seem to have been that the daughter was to have it before arriving at 25, only in case she had issue born. The word unmarried seems to have been used to express the same meaning as without issue born; it being impossible she could have issue born, in legal contemplation, without being married. Nor is it easily to be believed that the mother designed that if her daughter married and died under 25, without having children, her husband should take the bequest in preference to her own sister and brothers.

2. We think there is no ground for holding that the limitation over to the sister and two brothers is too remote, and therefore void. In this, as in numerous cases that have occurred, the word or, in order to effectuate the intent of the testatrix, may be read and, and then the contingency must happen within a life or lives in being and 21 years afterwards, and is therefore good by way of executory devise. Besides, even taking the words as they stand, the contingency is not if she die without issue, which is indefinite, but if she die without issue born; by which, immediately on the birth of issue, the bequest became absolute in the daughter.

3. It is contended that the bequest over lapsed by the death of the brother and sisters of the testatrix, before the decease of Mrs Kelso; and the argument is that the first bequest of Mrs Kelso is contingent, and the bequest over after it is also contingent; and that in such case no contingent legatee can transmit his interest to his representatives. It is, however, certain, that one or the other class of the legatees must take; the events contemplated must certainly happen, one way or the other. Mrs Kelso would either live to 25, or die before that time, having had issue born or not; so that the bequest was quodam modo vested in some of them. The contingency on which the legatees over were to take was not a contingency annexed to their capacity to take; such, for example, as their living to a certain time; but an event independent of them, and not affecting their capacity to take or transmit the right to their representatives; and such a contingent interest has frequently been decided to be vested so as to be transmissible to representatives. Hence the rule which applies is that laid down in 1 Roper on Legacies 401, where it is said to be a rule of construction in regard to contingent executory bequests, that the interests of the first and subsequent takers quodam modo vest uno instanti; so that if the substituted legatee die before the contingency happens upon which he is to succeed to the legacy, his representative will notwithstanding be entitled to it so soon as the event shall take place. Suppose then a bequest be made to A., but if A. died under 21, or without leaving children or issue, to B.; although B. happened to die before A., B.’s personal representative would be entitled to receive the legacy upon the happening of the contingency, on the ground of its being vested in right in B. previously to his decease, and several cases are cited. This seems to be the point before us.

Judgment affirmed.