
    JOSEPH C. WARE v. THE EXECUTORS OF MARY COOK.
    The will directs in substance, that §1500 be put at interest by the executors, and the interest be added to the principal from time to time, or the interest put at interest, and that one-lialf of said sum and of the interest which may have accrued when M. L. C. attains twenty-one, be paid to her, and that the other half be paid tó J. 0. when he attains twenty-one: and that if either die under age, leaving issue, his share be paid to his children ; and if either die under twenty-one without leaving issue, the will gives the whole of said share and interest to the other, or to the children which the other, if dead, may have left. Held, that on the death of one under twenty-one, leaving issue, the issue are entitled to receive the half; and further, that the time of payment in that event is not postponed to the time at which the deceased parent wonld have attained twenty-one, if he had lived.
    The bill slates that, on or about March 22d, 1839, Mary Cook, since deceased, made her will, by which she directed, among other things, as follows: “ 10th. I order the sum of $1500 to be put at interest by my executors, and the interest added to the principal from time to time, or the interest put at interest; and the one-half of said sum, with one-half of the interest which may have accrued when my granddaughter, Mary Louisa Cook, arrives at the age of twenty-one years, I order to be paid to her; or, if she dies before that time, leaving issue her surviving, I order her said share to be paid to her child or childen; and the remaining half of the said money, with the remainder of the interest, I order to be paid to my grandson, Joseph Cook, when he arrives at the-age of twenty-one years; but if ho dies before he arrives at the age aforesaid, leaving issue, I order his said share to be paid to his child or children; and if either the said Mary Louisa or the said Joseph die before arriving at the age aforesaid, and without leaving issue, then I give the whole of the said sum and interest to the survivor of them ; or if one of them die before arriving of age, and leave issue, and the other die before arriving of age, and without issue him or her surviving, then I give the whole of said moneys to the child or children of the one so dying and leaving issue.”
    
      
      “ 12th. All the residue of my estate, after the payment of my debts and expenses, and the legacies herein before devised, I give to my grandchildren Sarah Biehman, Mary Louisa Cook, Joseph Cook, and Mary Cook, to be equally divided between them, each one to receive his or her share thereofj as him or her attains the age of twenty-one years ; and if any one of them dies before him or her attains the age of twenty-one years, leaving issue him or her surviving, then to the issue of him or her so dying, I give the share which the parent or. parents of such issue would have been entitled Lto under this devise; but if any one or more of my said grandchildren die before attaining the age of twenty-one years, and without issue surviving him or her, then I give his or her share of this devise to the survivors and to the issue of him or her dying leaving issue, the issue of any one to have the same the parent of such child would have been entitled to under the devise.”
    That, on or about the 7th of January, 1841, the executors proved the will, and by virtue thereof possessed themselves of all the estate that was of the testatrix, amounting to $10,000 and upwards. That, on or about June 9th, 1842, the said Mary Louisa Cook was married to Bichard M. "Ware; that tin said Mary Louisa afterwards, on or about March 4th, 1844, died, not having yet attained the age of twenty-one years, leaving the complainant, her son and only child, her surviving, who is an infant of about ten months old. The bill is filed by the infant, by his guardian, Bichard M. Ware, his father, and prays that the executors may pay the. one-half of the said $1500, and of the'interest that has accrued thereon, and also the one-fourth, part of the residue of the estate, together with the interest that has accrued thereon.
    To this bill a general demurrer was filed July 10th, 1844.
    
      Mr. Jeffers, in support of the demurrer, contended, First, that, under the provisions of this will, after the death of Mary Louisa Cook under twenty-one years, no interest could ever vest in the complainant. Second, that, by the will, the money was not payable until the time at which Mary Louisa Cook would have attained twenty-one years of age, if she had lived, and that the bill does not show that the time had arrived.
    
      He cited 3 Atkyns 101, 102, 114, 427, 428; 3 Vesey 10, 12.
    P. D. Vroom, contra,
    
    cited 3 Atk. 645; 2 Brown’s Ch. R. 4, 305, 2 Meriv. 386; 6 Vesey 239; 7 Ibid. 421; 1 Roper on Leg. 387, 583, 584; 3 Vesey 15; Ambler 588; 2 P. W. 336, 478; 1 Eg. Ca. Ab. 299; 2 Vernon 94, 199, 283.
   The Chancellor.

The bequest made in each of the clauses, gives, I think, a vested interest. The will only postpones the time of payment. But in reference to both clauses there is a gift over to the issue of the legatee dying before twenty-one, leaving issue. The will gives half, with the interest thereon, to one, when she arrives at twenty-one, and half, with the interest thereon, to the other, when he arrives at twenty-one; and provides that if either die under twenty-one, leaving children, the half shall be paid to his or her children ; and that if either die under twenty-one, without leaving issue, the other, or the children he or she, if dead, may have left, shall have the whole.

If one die under age leaving children, does this will require us to say that these children shall have nothing unless and until they live to the time when their deceased parent would have attained twenty-one, if he or she had lived ? I see nothing in the language of the will, or in the nature of its provisions, requiring or authorizing such a construction.

The demurrer will be overruled.

Order accordingly.  