
    Justices of Wayne v. Crawford.
    V-From Wayne.
    Devise as follows: “1 lend to my wife, the plantation whereon I now live, and after her decease, I give and bequeath the said land unto my child that my wife is now pregnant with, if a boy, and if it should he a girl, I give the said land to my son II. upon his paying- unto the said child, if a girl, £100.”
    The legacy of £100 is not payable until the death of testator’s widow.
    This was an action of debt on the bond given by Crawford as guardian of Elizabeth Hooks. The Defendant, after Oyer, pleaded conditions performed, and the Plaintiff replied by assigning as a breach, that the Defendant had not collected and accounted with his said ward for a legacy of 10OZ. bequeathed to her in tiie will of her late father, R. Hooks.
    The case was, that R. Hooks in 179S made his will, and after giving to his wife one fifth part of his personal estate, devises and bequeaths as follows: “ 1 also lend 4£ to my wife all the plantation whereon I now live, and 
      k after her decease I give atid bequeath the said land unto “ my_ child that my wife is now going with, if it sliould « be a boy, and if it should be a girl, I give the said “ bind to my son Hillery Hooks, to" him and his heirs “ forever, upon the said Hillery’s paying unto the said “ child, if it sliould be a girl, ene hundred pounds.” The testator then devises to his son Washington and to the said Hillery other lands in fee, and directs that his personal estate, after the share of his wife shall have been allotted te her, shall bo kept together until his eldest child shall come of age, and then divided equally amongst all the children, including the one with which his wife was pregnant, and that the profits in the mean time shall be laid out in the education and maintenance of all his children. The child with which the wife of testator was pregnant at the time of making the will, was a daughter, Elizabeth $ for whose benefit this suit was brought. Soon after the date of the will, the testator died, and the will was proved. Hillery was then four or five years of age ; but has now come of full age, and has claimed the remainder in the land after the death of his mother, who 'is still living. The Defendant was appointed the guardian of Elizabeth many years ago, and gave this bond $ and a demand was made of this 1001. legacy before this suit was brought.
    Under the instruction of the Court, the Jury found for the Plaintiff, and assessed damages 2441.; being the principal sum of 1001. and interest thereon from 1795. From the judgment given thereon, the Defendant appealed to this Court.
    
      Gaston for the appellant.
    The right of the testator’s daughter to have the 1001. does not arise until after the death of his widow. The words are express — “ after her iC decease” he gives the land. Those words are . in the beginning of the clause, and qualify all that follows in that sentence» The pecuniary legacy to the child,, if a girl, is substituted for the devise of the land, if a boy. As the latter therefore, would not be an estate in possession, but in remainder after the widow’s life estate, so the former shall not be immediate, but await the death of the widow. The legacy is by way of personal charge on Hillery, and as a condition annexed to the devise to liim. The words “ upon the said Hillery’s paying 100i.” clearly make it a condition, and a condition subsequent. The condition being annexed to the devise, the charge accompanies the enjoyment of the land. But it is unreasonable and oppressive to require the performance of tlie condition and payment of the charge, before that is received which gives rise to them. Every devisee may decline accepting the thing devised, and then the devise and the charge must both fail. No act lias been done here amounting to an acceptance, nor can he be required to do such an act until the moment shall arrive when ho can enjoy. There is no necessity for construing this an immediate bequest, because other adequate and immediate provision is made for the daughter, in common with the other children. The construction put by the Plaintiff-pot only makes the bequest immediate, but demands that it should be a charge on Hillcry’s remainder in the land. Unless it be such a charge, the Defendant had no means of enforcing the payment. It is not a charge on the remainder; but it is only a condition, for the breach of which the heir at law may enter, and he will become trustee for the legatee. 'But the heir cannot enter until Hillery himself shall do so, after the death of the widow, and then break the condition by a failure to pay the legacy. It cannot be the true construction, which deprives Hillery, who is the primary object of the testator’s bounty, of all, for the sake merely of hastening the enjoyment of the daughter who is a secondary object of his benevolence. At all events, the instruction was wrong as to the interest. Legacies payable at a future day do not carry interest, except when given as portions for children, for whose support and maintenance no other provision is made.
    
    
      Monlecai on the other side.
    This being a egacy charged on real estate, it will sink into the estate for the benefit of the devisee, if the legatee die before the day of' payment. The case of Hall v. Terry 
       shews that this legacy is a charge upon the land, and that it is such an one as would sink by the death of Elizabeth. It is impossible to suppose, that the testator could intend the provision for this daughter to depend on the contingency of her surviving her mother, and that if she should die first, any children she might leave should be destitute. It was clearly his purpose to provide for the unborn child, by giving it, if a son, land; or, if a daughter, money : and he did not intend the latter provision to be less certain than the former. The .only way to make it so, is to consider it a charge upon the estate of Hillery arising immediately and payable immediately upon the birth of the daughter. There is no reason to suppose that the testator preferred Hillery above his other children. If this be a vested and absolute interest, then, upon the death of the daughter, before marriage or full age, it would be divided equally among the next of kin, including Hillery. But if it be not so regarded, he gets all, in that event. ,
    All legacies, where no time of payment is fixed, are payable here within two years, and in England within one. There is nothing in this will to alter the general rule. The words “ after her decease” relate only to the land, and are meant to shew the time when that shall vest in possession — and <e upon” is only to signify the Condition upon which Hillery should take the estate, and does not fix the time of payment. He does not say st upon his then paying.” The circumstance of the charge being on a dry reversion is immaterial. .Such, a legacy so charged, carries interest from one year after testator’s death; and a legacy never carries interest before it is payable, unless expressly directed in the will, or given to children who have no provision for maintenance. As to Hvllery’s not being compellable to elect during the life of the widow — that depends upon the very question here; for if the £100 be due immediately, upon a bill filed, the Court would have compelled him to elect.
    
      'Gaston in reply.
    It is not certain that this legacy would lapse by the death of Elizabeth before her mother; for perhaps the antecedent words of the sentence may be considered as vesting it, and that the payment is only postponed. Be this as it may, it ought not to make any difference; for the hardship of a lapse is not a sufficient reason for making this an immediate gift. The whole argument on the other side is built on that hardship j and, if successful, will overturn all those cases of lapse, where the words apply to the gift and not merely to the payment of the legacy. The cases of Maxwell v. Wet-tenhall, and Hall v. Terry, do not bear on this case.— The dry reversions meant in them, are reversions in the devisor himself, which he devises as dry reversions, and expressly charged with the legacy. Neither of those circumstances exists in the present case; It is an extravagant construction, that Hillery, then only four or five years old," should be held to sell the land for the sole purpose of discharging this legacy to his sister.
    
      
       Co. Lit. 236, b. Pow. on Dev. 246-7-8.
    
    
      
       Pow. Dev. 443,
    
    
      
       Wigg v. Wigg, 1 Atk. 382. 2 Mad; Eq, 106.
    
    
      
       2 Pr. Wms. 21. 3 Atk. 716. 3 Ves.Jr. 10-286. 2 John. C. Rep. 628. 1 Sch. & Lef. 5. 2 Mad. Eq. 69.
    
    
      
       1 Atk, 555. 2 Pr. Wins. 612, and Coxe’s JVoie.
      
    
    
      
       1 Atk. 502.
      
    
    
      
      
        Maxwell v. Wettenhall—2 Pr. Wms. 26. 3 Atk. 438.
    
   Taylor, Chief-Justice.

I think it is to be collected clearly from the language of the will, and the authorities applicable to the subject, that the £100 legacy is not payable until the death of the testator’s widow. After ^erit^nS b®r the plantation, the testator gives the same land after her decease, to the child his wife is then preg-with, if a son; but if a daughter, he then gives them to his son Hillery in fee, upon his paying to the daughter the legacy. Upon the birth of the daughter, the remainder, which was before contingent, vested in Hillery ; and at the same time the legacy vested in the daughter. But the period at which it is payable is prescribed and pointed out by the same expressions which give the remainder to Hillery, viz, after his wife’s decease.” In the face of so plain a declaration of the testator, I do not feel at liberty to conjecture that the legacy is payable before Hillery comes in to the possession of the land. Although this legacy is chargeable upon land, and the general rule in such case is, that if the legatee die before the time of payment it shall lapse, yet I think this case comes within the exceptions to that rule. For it was as much the intent of the testator that the daughter should have the legacy, as that the son should have the land, to whom it is given on condition of paying the 100Í. As this is not payable before the death of the widow, the postponement is made for the convenience of the estate and family, according to the cases cited in Mr. Coxe’s note to the case in 2 Pr. Williams, 613.

Hall and Henderson, Judges, declined saying whether the legacy was vested in Elizabeth and transmissible to her representatives, or would lapse by her death before the day of payment, as-the point was not now before them. For the other reasons given by the Chief-Justice, they concurred with him in opinion, that it was not payable during the life of the widow.

Judgment reversed.  