
    The State, for the use of Rebecca A. Richardson, v. Shadrach Raughley and David Taylor.
    In a will which contained the following residuary bequest, “ And all the rest of my estate, after my just debts are paid, to be equally divided among all my grandchildren of my five daughters, named J. V., wife of T. V., and 11. R., wife of J. R., and A. T., wife of D. T., and E. H., wife of J. H., and N. "W., wife of D. W., the money to be paid by my executors when they arrive at lawful age.” JBeld, that the grandchildren in being at the death of the testator only were entitled to the residue, and that a child of one of the daughters named, born after the death of the testator, could not be let in to participate in the benefits of the bequest; the period of distribution being fixed by import of the bequest at the time of his death, and the period of payment or enjoyment only being postponed until they should arrive at lawful age.
    This was an action of debt on a testamentary bond, for the use of Rebecca A. Richardson, against Shadrach Raughley, who was the surviving executor of the last will and testament of Shadrach Raughley, deceased, and David Taylor, who was the .surviving surety in the hand, in the Superior Court for Kent County, and came up on a case stated and question of law reserved, for a hearing before all the Judges in this Court. The Chancellor and Judges' all sitting.
    The facts of the case were as follows: Shadrach Raughley, deceased, late of Kent County, died on the 20th day of June, 1833, having on the 11th day of the same month made his will, which was afterwards duly proved and allowed before the Register of Wills for the County, by the. residuary clause of which, after devising his real estate and bequeathing certain general legacies, he disposed of the residue of his estate, consisting entirely of personalty, in the following bequest: “ And all the rest of my estate, after my just debts are paid, to he equally divided amongst all my grandchildren of my five daughters, •named, Jane Vickery, wife of Thomas Vickery, and Rebecca Richardson, wife of James Richardson, and Ann Taylor, wife of David Taylor, and Elizabeth Hopkins, wife of John Hopkins, and Haney Wighett, wife of Daniel Wighett, the money to be paid by my executors when they arrive at lawful age.” Shadrach Raughley, one of the defendants, and John Raughley, since deceased, sons of the testator, were appointed executors, and duly took upon themselves the execution of the will.
    At the time of the death of the testator, his daughter Jane Vickery had five children born and then living, the eldest, of whom and who was the oldest of the testator’s grandchildren then in being, attained the age of twenty-one years on the 15th of June, 1838; his daughter Rebecca Richardson had six children born and then living, and two children born after his death, of whom the party for whose use the suit was brought, Rebecca A. Richardson, was one, born on the 11th of Hovember, 1834; his daughter Ann Taylor had at the time of his death five children born and then living; his daughter Elizabeth Hopkins had one child horn and then living, whilst his daughter Mary Wighett had two children born and then living, and three others born after his decease and now living. On the settlement of the estate of the testator by his executors, there remained in their hands for distribution under the residuary clause above mentioned, a residue of $4645.21-|-, and on the 11th day of November, 1839, the year succeeding the arrival at age of the oldest of the testator’s grandchildren in being at the time of his decease, they passed their distributive account of the said residue before the register, whereby they distributed the same among such only of the grandchildren as were in being at the time of his death, wholly omitting therein to notice, or take any account of the party for whose use the suit was brought, or any of the other grandchildren who were born after the testator’s death, but all of whom were born before his eldest grandchild had attained the age of twenty-one years. That the said Rebecca A. Richardson had arrived at age on the 11th day of November, 1855, and that the suit was brought for her use to recover her just and proportionable share of the said residue, as one of the testator’s grandchildren, equally entitled thereto with the grandchildren in being at the. time of his death.
    The question of law reserved was, whether the party for whose use the suit had been brought, was entitled to recover on the foregoing statement of facts ? If so, judgment to be rendered in her favor for the one-twenty-third part of said residue with interest from the date of the distributive account; but if not, judgment to be rendered for the defendants.
    
      Comegys, for the plaintiff:
    The principle of law and rule of construction in bequests of this kind on which the plaintiff' relies for a recovery in this ease is this: where the bequest is to a class of individuals generally, as to children or grandchildren generally, without naming them individually, payable at a future time, as after a life estate given therein to another, or at the age of twenty-one, or marriage, all those answering the general description, or falling within the class horn before the time the property is to vest in possession, are entitled to equal shares in the bequest with those in being at the time of the testator’s death. And this rule of construction is not only reasonable, just and equitable in its application to such bequests, but it has long been favored by the Courts, as it enlarges the bounty of the te Stator, and lets in the younger, and perhaps more helpless and dependent offspring with the older children, to participate alike in its benefits, and for whom he is equally bound to provide. And notwithstanding the bequest is immediate and vests in interest on the death of the testator, yet, if the period of distribution and the time when it is to vest in possession is postponed, the principle is the same, for in that case also, the after-born children or grandchildren will take equally with those who were in existence at the time of his death. Roper on Leg. 48, 54; 2 Mad. Chanc. 21, 22; 2 Powel on Dev. 306; 2 Jarm. on Wills, 73; 2 Wms. on Exrs. 797; Atty. Genl. v. Crispin, 1 Bro. Ch. Cases, 386; Gilmore v. Severn, Ibid. 582; Andrews v. Partington, 3 Ibid. 401; Hughes v. Hughes, Ibid. 401; Prescott v. Long, 2 Ves. Jun’r, 690; Hoste v. Pratt, 3 Ibid. 730; Middleton v. Messenger, 5 Ibid. 136; Barrington v. Tristram, 6 Ibid. 344; Walker v. Shore, 15 Ibid. 123; Crone v. Odell, 1 Ball & Beatty, 449; Blease v. Burgh, 2 Beav. 221; Defflis v. Goldschmidt, 2 Meriv. 417; Jenkins v. Freyer, 4 Paige, 47; Swinton v. Legare, 2 McCord’s Ch. Rep. 440; Vanhook v. Rogers’ Exr. 3 Murph. N. C. Rep. 178; De Veaux v. De Veaux, 1 Strob. Eq. Rep. (S. C.) 228; Loockerman v. McBlair, 6 Gill. 177.
    
      W. Saulsbury, for the defendants:
    There is but one question involved in this case, and that is, when was this bequest distributable? We contend that it not only vested in interest immediately on the death of the testator, in the grandchildren then living and in being, but was also immediately distributable among them at that time by the terms of the bequest and the intention of the testator, although not actually to be enjoyed and received in possession by them, until they respectively attained the age of twenty-one years. The numerous eases cited on the other side do not involve this point, and consequently do not present this subordinate distinction well established and laid-down in the books. The time of payment is not necessarily the time of distribution of the legacy; for it may be distributable, though the time of payment may be postponed to a future period, and in such cases, the children or grandchildren born after the death of the testator will take no part in it. Freemantle v. Freemantle, 1 Cox, 248. The cases cited on the other side were either cases in which the' bequests were contingent in their nature "and not vested as in this case, or where there was an intervening life estate to another in the fund, or the bequest was in trust to another for the benefit of the legatees, and in none of which cases, of course, could there be any distribution in effect, or intended by the testator, until the future time of payment had arrived. In those cases it was not a present gift to the children or grandchildren, as in this instance, with the time of payment only postponed; but the gift itself in effect was at the future period indicated, and which, of course, would let in the after-born children. But here the gift is immediate, to be equally divided, the money to be paid by his executors when they arrived at lawful age. The words of the bequest as they stand, naturally and necessarily import a present and immediate division amongst his grandchildren by the five daughters named, the money not to be paid by his executors, however, until they respectively attained lawful age. "When such is the tenor of the bequest, it requires no citation of-authorities to show that .none but the grandchildren living at the death of the testator could have been intended by him to participate in the benefits of it.
    D. M. Bates, on the same side:
    Had the testator intended to embrace the after-born grandchildren within the scope and operation of this bequest, would he have been content to express his meaning in the words here em7 ployed ? As the language stands on the face of the will, it is susceptible of no other construction than that which my colleague has given it.
    But as much as the Courts have been inclined to enlarge the construction in devises and bequests to children-as a class, in order to include as many of the class as possible, and as far as this rule of construction has been pressed in the decisions which have been cited, it has never been pressed far enough to reach this case and let in the after-born grandchildren of the testator with the grandchildren in being at his death, to the benefits of this bequest. The distinction is this: when the division of the fund among the class is postponed to a future period—not the payment of the shares merely—the children coming in esse in the meantime will take; but when the gift and the division. , or distribution into shares is immediate on the death of the testator, and the payment of the shares merely is postponed to ¿ future time, then they are not let in. Because the fact'that the shares, so divided and ascertained, are to remain in the hands of the executors until the time of payment arrives, does not alter or affect the case any more .than if they were in the hands of guardians, to be paid on their arrival at age. In support of this distinction, which is clear and well established, I will refer to Rop. on Leg. 48; Horsley v. Chaloner, 2 Ves. Sen’r, 83; Hill v. Chapman, 1 Ves. Jun’r, 405; Singleton v. Gilbert, 1 Cox, 67; Hales v. Hales, cited in Congreve v. Congreve, 1 Bro. Ch. Cases, 530; Isaac v. Isaac, Amb. 348; Freemantle v. Freemantle, 1 Cox, 248; Davidson v. Dallas, 14 Ves. Jun’r, 575; Kevern v. Williams, 7 Eng. Ch. Rep. 375. These are all cases in which the distinction I have taken is fully recognized and established. But if the Court will critically examine all the cases cited on the other side, they will find that they are all cases of contingent, not vested bequests; as bequests at the age of twenty-one, or at or after the death of an intermediate legatee of the fund for life, or when or in case the said children should arrive at the age of twenty-one; and in which, of course, there could be no vesting, much less any division or distribution of the bequest until such future period arrived.
    
      Comegys, in reply:
    The words, “ equally to be divided,” which occur in this bequest, do not import, either in themselves or in the design of the testator, an immediate distribution of the fund, on his decease, among the grandchildren then in life and being, but import the same thing as if he had substituted for them the words, “ to be paid and had I time, authorities might be found to show that such is their legal interpretation.
    But it is alleged on the other side, that the cases which I have cited are all cases of contingent, not vested bequests. This, however, is not so. In the case of the Attorney-General v. Crispin, that point was made, and the Lord Chancellor. expressly declared that it was a vested bequest on the death of the testator, and that the after-born children must be let in. In this case, however, as the counsel on the other side have chosen to present it, the question is, when was the period for the distribution of the fund among the grandchildren? It was when any one of the legatees had a right to demand his share of it, and that could not be until the eldest of them arrived at age, when it was payable, and there was no period for the division or distributian of the fund among them, and there could be none, prior to that time.
    The case of Hill v. Chapman, cited on -the other side, has no application to this case. The same may be said of Singleton v. Gilbert. In the case of Isaac v. Isaac, the testator did not know whether his niece had children, and added, “ if she had no children,” then over to others; from which it was very properly inferred that he had reference to such children as she might then have. In the case of Freemantle v. Freemantle, the testator directed certain shares of stock to be transferred to the children; from which it might well be concluded that he intended the distribution to be immediate, and to be only among the children then in existence. The other cases cited, when properly considered, do not conflict with the construction for which I have contended. At all events, one thing is certain, the other side have no warrant for saying that the cases to which I have referred, in support of my construction of the bequest in question, are all cases of contingent legacies, for in no less than six of them the bequests were expressly held by the Court to be vested legacies on the death of the testator.
   Harrington, Ch.,

announced the decision of the Court.

The bequest in this case was a gift of the residue to the grandchildren (children of the five daughters mentioned),' divisible at the death of the testator, and payable, for convenience of administration, one year after, under the statute, if the testator had not enlarged the time of payment. It was therefore vested at the testator’s death in the children of these five daughters who were then in being. Debitum then; solvendum by the law of administration one year after. But by the testator’s directions, when these grandchildren should arrive at lawful age. The words of the will are: “ And all the rest of my estate, after my just debts are paid, to be equally divided amongst all my grandchildren of my five daughters, &c., the money to be paid by my executors when they arrive at lawful age;” and the language imports a present distribution and vesting of the residue at the death of the testator among the grandchildren then in esse, the money to be paid in futuro ; that is to- say, on their arrival at lawful age. But the time of payment when postponed, as in this case, does not change or divest the rights of the distributees or legatees, which were ascertained and fixed at the period of the distribution of the residue among them; and which must, of course, exclude any grandchildren born after that period. This distinction is fully sustained and recognized by what is said by the Court in the cases of Andrews v. Partington, 3 Bro. Ch. Ca. 401; Hughes v. Hughes, Ibid. 352, 434; Burrington v. Tristram, 6 Ves. Jun’r, 344; Walker v. Shore, 15 Ves. Jun’r, 123; Hale v. Hale, cited in Ellison v. Airey, 11 Ves. 112; Horsley v. Chaloner, 2 Ves. 83; Singleton v. Gilbert, 1 Cox, 67; Hill v. Chapman, 1 Ves. Jun’r, 405; Davidson v. Dallas, 14 Ves. Jun’r, 576; Kevern v. Williams, 7 Eng. Ch. R. 375. The rule, however, is different where the period of distribution, or division of the legacy, as well as the time of payment or enjoyment is postponed, by the direction or apparent intention of the testator; or where the fund is given in trust to be distributed, or paid by trustees at a future time among the children; or it is limited over to take effect after a preceding bequest of it to another for years, or for life, or on some future contingency which precludes its taking effect as a present gift to them; in all which* cases the rule of construction is that the after-born children coming into existence in the meanwhile, must be let in to an equal participation in the bequest. In this case, therefore, the plaintiff is not entitled to recover, and this opinion must be certified to the court below.  