Tayloe v. Mosher

*Miller, J., delivered the opinion of the court. The first inquiry in this case is, did Mrs. Imogene Tayloe, the mother of the complainant, take, under the will of her grand-father, James Mosher, any interest transmissible to her son? Upon the answer to this question depends the complainant’s right to any relief; and it must be decided, because we are of opinion if his mother did take such interest, he is entitled to a part of the relief prayed in his bill. By this will, executed in February, 1840, the testator, subject to the devises, bequests and dispositions in favor of his wife and his servants, gave and devised the whole of his estate, real, personal and mixed, not otherwise specifically disposed of, to two trustees, in trust for the purposes thereafter declared in his will, with power of leasing his real estate during the continuance of the trust.

He then directs the trustees to pay certain annuities to the grand-children of his wife by a former marriage, to his niece, and for the support of the family of his son William and his wife, in case she survived him without a child; and then the will proceeds thus: “ I will and desire that the clear income of my estate, if anything remain after the application annually or otherwise, of the several sums of money hereinbefore charged thereon, shall be invested in such manner as my trustees or the survivor of them shall think proper, and so on from time time, until a final distribution of my estate be made as hereinafter directed. Upon the death of my son William, I will and desire that a distribution of my estate be made among all my grand-children, to wit: ⁴⁵⁰ the children of my late son James Mosher, and the children qf my afqresaid son William, provided any child he shall leave. All my said grand-children to take per capita; reserving, however, in the hands of said trustees, for future distribution, if necessary, so much of my estate as will be sufficient to countervail and pay the several annuities or sums of money herein-before provided for, to the several annuitants or persons hereinbefore named, until the *same shall have ceased, -when a final distribution shall be made in manner aforesaidwith power to the trustees to make any sale, disposition or deed of his estate and property that may be requisite and proper for making such final distribution, and otherwise carrying into full effect the provisions of his will. Several codicils were subsequently executed merely increasing the amount of the provisions for his wife and the other annuitants, but furnishing no aid in the construction of this clause of the will.

At the date of the will, and at the death of the testator in March, 1845, he had and left three grand-children, the children of his deceased son James, viz: Imogene, Eliza and Theodore, the first of whom married John Tayloe, and died in August, 1846, leaving the complainant her only child and heir-at-law, and her husband surviving her. The testator’s son William, who is still living, has never had any issue. The question thus presented is, did the grand-children in esse at the death of the testator take under this will vested interests in the corpus of the estate and its accumulations, or was the vesting in interest postponed to the period of William’s death, leaving the whole to be distributed to those grand-children only who should be then living ? It is very difficult, in any case, to gather the intention of a testator from the language employed in the will, where events have occurred which probably were not in his contemplation when the will was executed, and the present case is surrounded with more than usual embarrassment and doubt.

The intention is certainly, in every case, the object of ascertainment; but, wherever there is doubt and difficult}'-, the courts must resort for aid to settled rules of construction. The most important of these, and indeed, the only one which seems to be general, definite and fixed, is that the law favors the vesting of estates, and where words of futurity are employed they are not to be ⁴⁵² regarded as importing contingency or as postponing the period of vesting, if they point merely to deferred possession or enjoyment. *This rule has been adopted to uphold testamentary dispositions of property, and to prevent intestacy. It is especially applicable to a devise or bequest like the present, of a residue, and is founded on the reasonable presumption that every man who deliberately makes a will in which he professes to dispose of his whole estate, does not intend to leave any portion of his property in such a condition as not to pass under the will. “ One does not like,” says Vice Chancellor Shadwell, in Lett v. Randall, 10 Simons, 112, “to construe a will so as to make the testator die intestate, unless it is impossible so to construe it as to give effect to what may be fairly collected to have been his intention.” The argument against the vesting has been presented with much ability and force of reasoning, by the appellees’ counsel. It is said this is a devise to trustees to pay and transfer, at a future period, to a class of individuals with provision, that the income shall, in the meantime, accumulate; that no previous mention is made of the grand-children in any other clause of the will; that no part of the income, or of the interest of the invested accumulations is given them for support 'and maintenance before the period of distribution shall arrive; that there is no limitation over, and no provision made for issue or survivorship of individuals of the class specified; that there is no antecedent gift of which the enjoyment could be postponed, and the only gift being in the direction to pay and distribute, it can only attach to those who may come within the description of the class at the period of distribution, when the gift takes effect; that this intention is made more manifest from the fact that, as to the children of William, the devise is clearly contingent upon the event of such child or children surviving their father by force of the words, “provided any child he shall leave ” and where an estate is made contingent as to one of a class, it must be so construed as to all.

But it makes no difference, as to the vesting, whether the legal estate be devised to trustees who are required to convey *according to the directions of the will, or whether the interest is provided to take effect without the intervention of trustees, nor that the trust provides for the accumulation of in ⁴⁵³ come until the period of payment or distribution arrives. These propositions are settled by numerous authorities in England, as well as by the recent decisions of this court. Phipps v. Ackers, 9 Clark & Finnelly, 583; Waters v. Waters, 24 Md. 430 ; Meyer v. Eisler, ante, p. 28. In Leake v. Robinson, 2 Meriv. 362, there were, in different parts of the will, different expressions directing payment by the trustees, in some instances to such child or children as shall attain twenty-five, in others, upon attainment of the age of twenty-five, and in the residuary clause, the trustees were to transfer the property from, and immediately after such child or children shall attain the age of twenty-five.

It was there held that the testator, in each instance, meant precisely the same thing, and that none of the several classes of children took vested interests before the specified period, and in so deciding, the Master of the Rolls, Sir William Grant, laid much stress upon the fact that there was no direct gift to any of the classes mentioned except in the direction to pay and transfer. But this case, and others, in which similar reliance has been placed upon this circumstance, have been thoroughly reviewed by Vice-Chancellor Wigram, in Leeming v. Sharratt, 2 Hare, 14, who conclusively shows that the mere fact that the gift is future, and made solely under the form of a direction to pay or transfer, does not furnish a simple rule of decision for all cases; that these are circumstances to be considered in arriving at the intention, but certainly not conclusive. “ The question,” says the Vice-Chancellor, “ in all the cases has been, whether the testator intended it a condition precedent that the legatees should survive the time appointed by him for the payment of their legacies, and the answer to this question has been sought for out of the whole will, and not in particular expressions only,” and he adopts tire general rule as stated by Lord Loughborough in Monkhouse *v. Holme, 1 Bro. Ch. 298: “If the day is certain, it is vested, but where uncertain, the question will be, whether it is in the nature of a condition, for if it is conditional, then in the very nature of the thing, the time is annexed to the substance of the gift, as in the case of marriage, of puberty, or of any other situation in life, when thé arrival of the time is a condition, without which the testator would not have made the giftand by the Master of the Rolls, in May v. Wood, 3 Bro. Ch. 473: “All ⁴⁵⁴ the cases establish this principle, that where the time is mentioned as referring to the legacy itself, unless it appears to have been fixed by the testator as absolutely necessary to have arrived before any part of his bounty can attach to the legatee, the legacy attaches immediately, and the time of payment is merely postponed, not being annexed to the substance of the gift; but, if it appears that the testator intended it as a condition precedent upon which the legacy must take place, then, if such condition or contingency does not happen, the gift never arises.” One of the provisions of the will construed in Leeming v. Sharratt, supra, was a gift of a residue of real and personal estate to trustees to sell and divide the money unto and equally among all the testator’s children, so soon as the youngest should attain twenty-one; and in case of the death of any child leaving lawful issue, such issue to have the part or share the parent so dying would have been entitled to have, and it was held that the legacy was vested, and that the share of a child, who died without issue before the youngest child attained twenty-one, the time of division, passed to his representatives.

Two subsequent decisions, Mower v. Walker, 16 Beav. 365, and Chance v. Chance, 16 Beav. 572, have been strongly pressed upon our attention. In the first, there was a devise and bequest of real and personal estate to trustees, in trust for A. for life, and after her death to convey and assign the same unto, and equally between all and every, the child and children of A., “ on their respectively attaining tzventy-one years of age,” with a gift over in case of A.’s death, leaving no child *surviving her; and it was held that A.’s child, who survived her, and died before attaining twenty-two, did not take a vested interest, and that the gift over failed. In the second, the testatrix appointed a trust fund to two trustees, in trust, to pay the dividends to A. for life, and after his death, she gave the dividends to B. and C. for life, and after the death of the survivor, she directed the principal to be divided into two parts, and to be transferred or paid unto, and equally divided between, “all the children” of B. and C. respectively, “at the age of twenty-five years;” and it was held the legacies did not vest until the period of payment, and as that period violated the rule as to remoteness, the gifts were void. These decisions were made by Sir J. Romily, Master of the Rolls, and in each of ⁴⁵⁵ them he adverts to, and relies upon, the fact that there was no gift except in the direction to pay at twenty-five, and brings them within the authorities which hold, that where there “is a gift made to a class on condition of their filling a particular character, it can only vest in case that condition is satisfied,” thus making the attainment of a specified age the same thing as filling a particular character.

W°e need not stop to consider how far these decisions conflict with Boraston’s