
    James Van Dyke’s administrator vs. William Vanderpool’s administrator and others.
    A testator directed his executor to invest and keep invested the sum of $5000, and to pay the interest arising therefrom to M. V. D. G. during her life ; and if the said M. Y. D. G. should die leaving a child or children lawfully begotten, then to pay the principal sum to such child or children, share and share alike ; and if no child should bo living of the said M., but grandchildren, then to pay over the said sum to such grandchildren equally ; but if the said M. V. D. Q. should die leaving no child or grandchildren lawfully begotten, then I direct my executor to pay over the said sum to James V. Vanderpool, William Vanderpool, and Maria Van Dyke, and their heirs and assigns, share and share alike.
    
    James V. Vanderpool and William Vanderpool died in the lifetime of M. V. D. G., and she afterwards died leaving no children or grandchildren.
    
      Held that James V. Vanderpool and William Vanderpool took a vested interest in the fund, and that their representatives are entitled to claim . their respective portions thereof.
    The fact that the enjoyment is uncertain never interferes with the vesting of an estate. When the contingency is not in the person, but in the event or in the time of enjoyment, the interest is vested.
    It is the present capacity of taking effect in possession, if the possession should ever become vacant, not the certainty that it ever will become vacant while the remainder continues, which distinguishes a vested from a contingent remainder. In the former, the enjoyment only is uncertain, in the latter, the right to that enjoyment.
    A legacy given at or after any future specified period or event is not vested, and the legatee’s right to it depends upon his being alive at the time fixed for its enjoyment.
    The rule, however, is subject to exception, and when there is no other gift than in the direction to pay or distribute in futuro, yet if such payment or distribution appear to be postponed for the convenience of the fund or property (as where the future gift is on’y postponed to let in some other interest), the vesting will not be deferred till the period in question.
    The general policy of the law and the rules of interpretation require that legacies in all cases, unless clearly inconsistent with the intention of the testator, should be held to be vested rather than contingent.
    The facts of the case appear in the Chancellor’s opinion. It was argued on written briefs.
    
      Mr. Bradley, for administrator of William Vanderpool.
    I contend, on behalf of the administrator, &c., of William Vanderpool, deceased, that the legacy given to him in the ninth article of the will was a vested legacy, and devolved to his personal representative, though he died before Maria V. D. Gough, the tenant for life.
    1. A legacy given in general terms without limitation as to time is a vested legacy. 2 Williams on Executors 1051; 1 Jarman on Wills 156.
    
      A legacy given at or after a specified period or event is not vested, and does not vest until that happens. 2 Williams 1057.
    Now suppose the legacy in question comes under the latter class, yet there are exceptions to both of the above general rules.
    To the second rule these exceptions exist:
    
      First. If the interest be secured to the legatee in futuro, until the gift takes place the legacy vests, provided the corpus of the fund be separated from the rest of the estate. 2 Williams 1059, 1062.
    
      Second. If a life estate in the fund be bequeathed to one person, and after his decease the fund be bequeathed to another, the legacy in remainder is vested. 2 Williams 1065.
    Note. — In 2 Williams 1067, it is said that if only the interest of the fund be given to the first legatee, so that he takes no interest in the capital of it, then the gift over does not vest. This I doubt — the distinction is too subtle.
    
      Third. Though the gift be merely a direction to pay or distribute in futuro, yet if such payment or distribution-appear to be postponed for the convenience of the fund or property (as the letting in of another interest) the vesting will take place. 2 Williams 1068-9; 1 Jarm. 756, 763-4.
    Our case, I contend, comes under this last exception. The gift to William Vanderpool is postponed for the convenience -of the fund, and not for any thing personal to himself. Nothing but the death of Maria V. D. Gough is necessary to entitle him to his part of the fund. If that had happened the next day after the decease of the testator, it was his will that the three remaindermen should step into the enjoyment of the legacy. Therefore they are vested legacies.
    
      F. T. Frelinghuysen, for executor of legatee of J. V. D. Vanderpool.
    My insistment is, that the heirs of William Vanderpool and James Vanderpool are, with Maria Van Dyke, entitled to the principal money, the $5000.
    
      There is no question that Maria Van Dyke takes one-third of the principal.
    The only question is, had William Vanderpool and James Vanderpool a vested interest in the fund at the time of their death?
    If they had, the principal of course descends to their heirs.
    William Vanderpool and James Vanderpool had a vested interest.
    They had a vested interest, subject to be defeated by Maria Van Dyke Gough dying leaving children.
    That event did not occur.
    1. The legacy vests just as much in William and James as it did in Maria Gough; the only difference being that if matters stood as they then were, and Maria Gough had no child, she, Maria Gough, was to enjoy the property for her life.
    It is as if the will had provided that on Maria Gough’s death the principal was to go to William and James, unless she should have and leave a child or grandchild.
    The legacy is vested subject to be defeated.
    2. When a legacy is severed from the rest of the estate, and appropriated for the benefit of the legatee, it will be deemed vested. Gifford, administrator, v. Thorn, 1 Stock. 708, and cases there cited. This $5000 is placed in the hands of the executors for this purpose.
    3. When the person to whom the legacy is to go is certain, but the time when, or the contingency upon the happening of which is only uncertain, the legacy is vested. 1 Comst. R. 491; 2 Sandf. Ch. R. 533; 3 Brown's R. 75, notes.
    
    4. There is no other provision for the disposal of this legacy, and testator would die intestate as to it but for the residuary clause; and the fact of this legacy being severed from the estate shows it was not contemplated it should go to the residuum. 1 Stock. 709; 1 Russell's R. 225.
    5. If it appears, from expressions or directions contained in the will, or if it can be fairly deduced from the entire Instrument that the intention of the testator was that the legacy shall vest, such intention shall prevail. 1 Stock. 708; Cook v. Holmes, 12 Mass. R. 531.
    Such was his intention.
    1. Severance of this amount, and no provision as to it after the death of Maria Gough childless, except residuum.
    2. If Maria Gough die childless, the will says it is to go-to James and William, and to their hei/rs and assigns.
    
    These expressions contemplate this very case — go to them —to their heirs if intestate, or to their legatees if testate.
    The case of Gifford v. Thorn, 1 Stock. 708, was this: A bequest was made to W. I. T., “when he arrives at "the age of twenty-one years, to him and his heirs for ever.”
    That is saying this legacy shall not vest unless W. I. T. lives to be twenty-one years old.
    It is an express provision that it shall not vest.
    There is no person to answer the description of the legatee until W. I. T. is twenty-one, and of course the court so held.
    But here the person is certain, and the only restriction is, that the interest of James and William is defeated by an event which has not, and now cannot occur.
    It is the present capacity of taking effect in possession, if the possession were to become vacant, that distinguishes a vested from a contingent remainder. Moore v. Rake, 2 Dutcher 572; Fearne on Rem. 277, 4 Kent 202.
    The remainder is said to be vested when an estate for life- or in tail intervenes. 2 Bl. Com. 172, note.
    
    
      C. Packer, for Maria Van Dyke.
    We claim that Maria Van Dyke is by law entitled to the whole of the legacy.
    This legacy did not vest in the devisees named to receive it in default of issue of Maria V. D. Gough at the death of the testator, and when it did vest (which was at the- death of Maria V. D. Gough) only one of these devisees was alive to receive it. The rights of the other two lapsed, and Maria Van Dyke takes the whole.
    
      If upon construction of a will, it appears that the testator meant the time of payment to he the period at which a legacy should vest, the legatees living to attain the age of maturity, or other period of payment, is of the essence of the bequest; for if he previously die, he will have taken no interest in the legacy to transmit to his personal representatives. 1 Roper on Legacies, 557 (2d Am. edition).
    
    When the event upon which a legacy is directed to be paid is uncertain as to its ever taking place, the legacy will not vest previously to the happening of that event. 1 Roper 563.
    Here there are two events upon the happening of which this legacy is to vest, one certain, the death of Maria V. D. Gough, the other uncertain, her not leaving lawful issue.
    "Within the rules above stated, the legacy did not vest at the testator’s death, and only came to those who, when it vested, were alive to take it.
    It is the plain intent of the testator that this legacy shall not vest during the life of Maria Gough.
    Rote. — That it continues unsettled who shall enjoy. Executors retain it. “ If no issue, &c.,” then to “ pay over.” Is it not evident that testator contemplated no such contingency as the Vandorpools dying before Maria Gough?
    See additionally the observations of the court in Administrators of Hoyt v. Thorn, 1 Stock. 103; also 2 Williams on Executors 1051-1055.
    If only the interest of a fund be given to the first legatee, so that he takes no interest in the capital of it, the gift over does not vest. 2 Williams 1067.
    It is contended, by counsel on the other side, that this case comes within the rule, that though the gift be merely a direction to pay or distribute in futuro, yet if such payment or distribution appear to be postponed for the convenience of the fund or property (as the letting in of another interest) the vesting will take place. The authorities cited are eases where there was no contingency as to the substance of the gift. 1 Jarman 756, 763.
    The legatee was on a certain event to have the gift, and meanwhile it was secured for him. Here whether he is to have it or not is uncertain. He must not only wait the death of Maria V. D. Gough, but take the risk of her leaving issue.
    The residuary clause does not affect the case. He made Maria V. D. G. one of his residuary legatees. But this legacy is to be set apart, and the principal undisposed of till her death.
    The gift in this case is a joint tenancy. 2 Williams 1253. Notwithstanding the words “ share and share alike.” 2 Williams 1045.
   The Chancellor.

The bill in this cause is filed by the administrator de bonis non cum testamento annesco of James Van Dyke, deceased, to ascertain and settle the construction of one of the clauses of the testator’s will. The clause in question is as follows : I order and direct my executor, herein after named, to place out, or if already put out, to keep out on bond and mortgage, in stock or in any other manner, upon sufficient security in his discretion, after paying thereout any sum that may be wanting to satisfy the debts and the legacies herein before mentioned, the balance of the moneys arising from the sale of my house in Fly-market street, in the city of New York, now supposed will be somewhere about ten thousand dollars, and to pay one hall' of the interest moneys arising therefrom to the said Maria Van Dyke Gough during her life ; and if the said Maria Van Dyke Gough should die leaving a child or children lawfully begotten, then to pay the principal sum of $5000, or the one half of the balance remaining on the said sale as aforesaid, to such child or children, share and share alike ; and if no child should be living at the decease of the said Maria but grandchildren, then to pay over the said sum to such grandchildren equally ; but if the said Maria Van Dyke Gough shall die leaving no child or grandchild lawfully begotten, then I direct my said executor to pay over the said sum to James Van Dyke Vanderpool, of Hackensack, William Vanderpool, son of James Vanderpool, of Newark, and my niece Maria Van Dyke, daughter of John Van Dyke, and their heirs and assigns, share and share alike. And I do order and direct my executor, herein after named, to pay over the interest arising on the remaining half of the said sum of money from the said sale to my sister, Zyerty Salters, during her life, and upon her death to pay over the principal sum remaining, that is the principal sum of $5000, or the remaining one half of the principal sum arising on the said sale, so placed out at interest as aforesaid, after paying the debts and legacies aforesaid to Catharine Parker the eider, her heirs and assigns for ever.”

James V. Vanderpool and William Vanderpool, two of the legatees to whom the fund was bequeathed, upon the death of Maria Van Dyke Gough without leaving children or grandchildren, died in the lifetime of the said Maria. Maria Van Dyke Gough died without leaving children or grandchildren, never having had any lawful issue. The shares bequeathed to James V. Vanderpool and William Vanderpool are claimed by their respective representatives. The only question is, whether they took a vested interest under the will.

In terms there is no direct gift to any of the legatees. The intention of the testator must be sought for in the directions to the trustee for the disposition of the fund. In construing the will, therefore, we are deprived of the aid which is often derived from the precise terms of the bequest, importing either an immediate gift, to be enjoyed in future, or making the time of payment the essence of the gift itself. The intention of the testator must be sought for rather in the general character of the gift than in the precise import of the terms employed. Substantially the bequest is of the luí e rest of the fund to Maria Van Dyke Gough for her life, upon her death to her children or grandchildren, and if she leave no lawful issue, over to James and William Vanderpool and Maria Van Dyke absolutely.

The terms employed in the directions to the trustee may import the gift either of an immediate or a future interest. As applied to the gift of the interest to the tenant for life, it imports a vested interest. Nor from the use of the terms employed, especially in the gift over of the share of the fund given to his sister, Zyerty Salters, is there any room for doubt that the testator designed to give to Catharine Parker, the legatee over of that part of the fund, a vested interest. The terms employed indicate a purpose to dispose of the entire property in the fund. There is, moreover, a marked contrast in the terms of the gift over, and of that to the children and grandchildren of Maria Van Dyke Gough, indicating, in the one case, a clear intent that the legatee should take only in the event of their surviving Maria Van Dyke Gough, and in the other, an absolute and unconditional gift of the entire interest in the fund. The fund itself is separated from the corpus of the estate, and there could have been no intention on the part of the testator either to leave it undisposed of, or that it should constitute any portion of the residue.

The fact, that in the disposition of that portion of the fund now in controversy there is an immediate gift of the fund upon a contingency between the life estate to Maria Van Dyke Gough and the final disposition of the fund, does not affect the interest of the last taker or prevent the vesting of the legacy. If such be the apparent intent of the testator, the gift in such cases vests, subject to be divested upon the happening of the contingency. The fact that the. enjoyment is uncertain never interferes with the vesting of .an estate. Where the contingency is not in the person, but in the event or in the time of the enjoyment, the interest is vested.

It is the present capacity of taking effect in possession, if .the possession should ever become vacant, not the certainty that it ever will become vacant while the remainder continues, which distinguishes a vested from a contingent remainder. In the former, the enjoyment only is uncertain, in the latter, the right to that enjoyment. Williamson v. Field, 2 Sandf. Ch. R. 553.

A legacy given at or after any future specified period or event is not vested, and the legatee’s right to it depends upon his being alive at the time fixed for its enjoyment. 2 Williams on Executors 1052, 1057.

In the bequest under consideration there is, as has been said, no gift of the legacy distinct from the direction to the trustee for its payment. The direction for payment constitutes the gift.

There is nothing to annex the time for payment, in the terms of the gift, to the substance of the legacy, and make the legatee’s right to it depend upon his being alive at the death of the tenant for life. The case, therefore, does not fall strictly within the operation of the general rule referred to. The rule, however, is subject to exceptions, and where tliore is no other gift than in the direction to pay or distribute infubwro, yet if such payment or distribution appear to be postponed for the convenience of the fund or property (as where the future gift is only postponed to let in some other interest) the vesting will not be deferred till the period in question. 2 Williams on Executors 1068, 1069; 1 Jarman on Wills 756, 763, 764; Peckham v. Gregory, 4 Hare 396.

The general policy of the law and the rules of interpretation require that legacies in all cases, unless clearly inconsistent with the intention of the testator, should be held to be vested rather than contingent.

To hold the legacy in this case to bo vested will be in accordance with the intention of the testator, so far as it can be gathered from the general terms of the will and consistent with the settled rules of interpretation.

Decree accordingly.

Cited in Post v. Herberts Ex’rs, 12 C. E. Gr. 545; Thornton v. Roberts, 3 Stew. 476; Herbert v. Post, 11 C. E. Gr. 281.  