Von Der Horst v. Von Der Horst

McSherry, C. J., delivered the opinion of the Court. The record now before us has been brought up by an appeal from a- pro forma decree passed by the Circuit Court of Baltimore City. The will of John H. Von der Horst gives rise to the questions which we are required to decide. By one of the provisions of his will Mr. Von der Horst gave to his grandchildren, Charlotte, Harry and Percy, each the sum of ten thousand dollars, which amount, the will declares, “ is to be paid to them as they respectively arrive at the age of majority, but should, however, either one or more of said children die before arriving at the age of majority, then the share to which such child would have been entitled to if living, shall go into the residue of my estate.” Without quoting any other provision of the will or alluding to the controversy which seems to have arisen respecting other subjects in the settlement of the estate, because neither the one nor the other has the slightest bearing upon or relates in any way to the pending appeal, we proceed at once to dispose of the contentions growing out of the clause just transcribed.

It is insisted by the guardian of the grandchildren that the legacies thus given to ¹²⁹ them are vested and not contingent, and that, therefore, though the legatees have not attained majority, interest on the legacies is payable and will continue to accrue up to the periods when the legatees respectively reach the age at which they are, under the terms of the will, entitled to the possession of the funds. There is no doubt, speaking generally, that the law favors the early vesting of estates; and when there are, by the terms of the will, two periods to which the vesting may, with equal propriety, be referred and the testator has left it in doubt which of the two he intended to be the period of vesting, the law will presume that he designed the earlier one. He may, however, if he so chooses, fix a remote instead of an early period for the vesting of a legacy; provided of course he does not so far postpone the time of vesting as to infringe or trench on some settled and unyielding rule of law, and his intention, if capable of being carried out, will be given effect. There are, as is well understood, no formal, fixed or technical words that must, or need, be used or employed to give expression to such an intention; and precisely because this is so, great diversity is to be found in adjudged cases where similar questions have been discussed.

But though a legacy may vest at once, the possession of the legacy may be deferred to some time in the future. There may, therefore, be either an immediate vesting and a deferred possession, or a coincident vesting and possession. In the will now before us the legacies are given to the grandchildren, not at or upon their attaining their majority, in which event the legacies would obviously not vest until or unless the legatees attained majority, but they are given immediately though the possession, or the payment of them, is postponed to, and made to depend on, a future contingency. After remarking that there is hardly one case that can be cited as a precedent for another, it was said by Lord Hardwicke in Heath v. Perry, 3 Atk. 102: “ Some things are certain in these cases; for if a legacy is given generally at marriage or at twenty-one then the vesting and the time of payment are the §ame and the ¹³⁰ legacy shall not vest until marriage or twenty-one.” These legacies are.given, not at twenty-one or majority, but at once, though their payment is made dependent on a condition.

If the condition should fail to occur, the amount of the legacy falls, by the terms of the will, into the residuum. It is clear, we think, that these legacies to the grandchildren are vested legacies but are defeasible upon the happening of a condition. When they cease to be defeasible they become payable. Do they bear interest in the meantime?

This inquiry is free from difficulty. What the testator declares in his will is, that upon each of the three grandchildren attaining majority each shall be paid ten thousand dollars —