The question to be determined is, whether, under the fourth clause of the will of Mehitable Godfrey, her grandson, Charles Brown Godfrey, took a vested legacy, or whether the legacy was contingent depending on his attaining the age of twenty-five years.
In Furness v. Fox, 1 Cush. 136, the rule taken from 3 Woodeson 512 is laid down as follows: "If the time of payment merely be postponed, and it appear to be the intention of the testator that his bounty should immediately attach, the legacy is of the vested kind; but if the time be annexed to the substance of the gift, as a condition precedent, it is contingent and not transmissible."
The same rule is stated by BELLOWS, J., in Brown v. Brown, 44 N.H. 283, in these words: "It is well settled that where the words of the bequest which look to the future apply to the substance of the gift, the vesting is suspended; but if they appear to relate merely to the time of payment, the legacy vests at once upon the death of the testator."
The established rule of construction was further held, in Brown v. Brown, to be "that if the bequest be of a sum of money to the legatee `at the age of twenty-one years,' or `if or provided he arrive at that age,' then the interest is contingent, unless these terms are controlled by other parts of the will. On the contrary, where the gift is of a sum of money to the legatee, `payable' or `to be paid' at the age of twenty-one, the legacy vests immediately, and upon the legatee's death before that age goes to his representative."
The weight of authority in support of this view is so great that it cannot now be questioned. Felton v. Sawyer, 41 N.H. 202; Burleigh v. Clough, 52 N.H. 267; Shattuck v. Stedman, 2 Pick. 468; 4 Kent's Com. 204. The earlier English cases are cited and commented upon by PARKER, C. J., in Shattuck v. Stedman, and in Felton v. Sawyer by BELLOWS, J., and they are uniformly in favor of the rule as here given.
The law favors vested in preference to contingent estates, if it is consistent with the intention of the testator. Burleigh v. Clough,52 N.H. 267; Shattuck v. Stedman, 2 Pick. 468.
Mehitable Godfrey, by the fourth clause of her will, bequeathed the residuum of her estate to Winthrop N. Dow, to be held in trust for her grandson, Charles B. Godfrey, until he should attain the age of *Page 16 twenty-five years, at which time Dow was ordered to pay over and deliver to Charles B. the estate so held by him in trust. If the testatrix had stopped here, the case would present no difficulty. The estate is given to Dow in trust for the benefit of Charles B., and vests immediately upon her death, the trust-estate to cease when Charles B. shall attain the age of twenty-five, at which time it is to be paid over and delivered to the beneficiary. Time is not annexed to the substance of the gift as a condition precedent, but payment is postponed. Do the words added by the testatrix, "from and after that time to belong to the said Charles Brown Godfrey, his heirs and assigns forever," affect the construction that would otherwise be given this clause of her will?
This property was given to the grandson through the intervention of a trustee. I think this language is not to be construed as indicating an intention to postpone the vesting of the legacy, but rather as declaring the intention of the testatrix that when the beneficiary should attain a given age, the property should, from and after that time, belong to him and his heirs and assigns, discharged from the trust-estate.
The general rule is, that a trust-estate is not to continue beyond the period required by the purposes of the trust. 4 Kent's Com. 204; Player v. Nicholls, 1 B. C. 336; Doe v. Simpson, 5 East 162; Doe v. Timins, 1 B. Ald. 530. Although it was unnecessary, yet to remove the possibility of having a doubt, she was careful to add these words as expressing her intention to be in conformity to the general rule.
This view is confirmed by the provision that is made in the clause immediately following, which is in these words: "Provided, nevertheless, that if it shall be found necessary to expend any portion of said estate so holden by said Dow for the support of said Charles, then so much and no more may be so appropriated for his support until he shall attain the aforesaid age of twenty-five years." By the third clause in the will, thirteen hundred dollars in bank stock was bequeathed to the said Charles, without the intervention of a trustee, to be delivered to him when he should attain the age of twenty-one years. No question can possibly arise but that Charles took a vested legacy under this clause, payable upon his attaining a certain age. It seems to me that it was evidently the intention of the testatrix, on the one hand, to guard against the improvident use of her estate by her grandson, by fixing stated periods when he should come into possession of the same; and, on the other hand, provision was made for extraordinary emergencies, should his necessities require it, by authorizing the trustee to expend such portion of the trust-estate (which must include principal as well as interest) as his wants might require.
This view is further confirmed by the fact that if the testatrix intended this to be a contingent instead of a vested legacy, no disposition by will is made of her estate in case of the failure of Charles to reach the prescribed age. If such had been her intention, she would hardly have failed to provide for such a contingency.
For these reasons I am of the opinion that the testatrix intended to make an immediate bequest to her grandson, but that the estate should *Page 17 not go into his hands until he should reach the age of twenty-five years, when he should thenceforth hold it discharged of the trust.
The declarations of the testratrix [testatrix] as to her intentions, at the time the will was made, that the property should not go to the Browns, were not admissible. Parol testimony cannot be received to supply or contradict, enlarge or vary, the words of a will, nor to explain the intention of the testator — Shattuck v. Stedman, 2 Pick. 469; 1 Redf. on Wills 496; Gale v. Drake, 51 N.H. 78 — except (1) where there is a latent ambiguity, arising dehors the will, as to the person or subject-matter meant to be described, and (2) to rebut a resulting trust. Mann v. Mann, 1 Johns. Ch. 231, cited in 1 Redf. on Wills 501 (ed. of 1864), sec. 9. And courts will look at the circumstances under which the devisor makes his will, — as the state of his property, of his family, and the like. See Jarman's 10th General Rule in 1 Redf. on Wills 426, note 6, and authorities cited, for the purpose of enabling the court to identify the person or thing intended by the testator, or to determine the quantity of interest he has given by his will. See Wigram's 5th Proposition, in 1 Redf. on Wills 503, note 16.