
    Scott surviving executor, against Josiah Price surviving executor.
    In Error.
    ERROR to the Common Pleas of Franklin county.
    
      Josiah Price, the defendant in error and plaintiff below, who was husband and administrator of Sarah Price deceased, brought this action against John Scott, the surviving executor of William Scott, to recover a legacy bequeathed to her by the will of her father, William Scott. The will contained bequests of the testator’s real and personal estate to his two sons jointly, subject to the payment of debts and legacies: and after giving to his daughter Jane, some personal property, bequeathed to her “ five hundred pounds specie to be “ Pa^ ’n manner following, viz. one hundred pounds three ^ years after the date hereof, arid one hundred pounds every succeeding year until the said sum of five hundred pounds a ^ paJd. Likewise, I will and bequeath unto my daughter, “Sarah Scott, her heirs and assigns, my negro girl named “ Hannah, and the one-third part of my household furniture, il a horse and saddle of the value of thirty pounds, as also five u hundred and fifty pounds specie, to be paid to her in yearly “payments, viz. one hundred pounds yearly, after she arrives at the age of eighteen years, until the said five hundred and “fifty pounds be paid.” A subsequent part of the will contains the following clause. “ It is further my -will, that if it u should please God that any or either of my before-mentioned “ sons or daughters should die, before he, she, or they attain <c the age of twenty-one years, unmarried or without lawful “ issue, that then, or in either case, the bequest or bequests H herein before made to any or either of them, shall devolve to u the survivors or survivor, to be divided share and share “ alike, and in case it should happen, that my said sons and 11 daughters should all so die under age and without lawful “ issue, that then and in such case my whole estate real, be-<lJore divided shall descend to my brother James Scott’s son, “ Alexander
    
    
      A legacy' payable in instalments after the legatee’s arriving at 18: and in case she died before attaining the age of 21 years unmarried or without lawful issue,then, or in either case, is absolutely vested, though the legatee die after 21 without issue.
    Money may he the subject of an executory devise'; and it is not too remote if the limitation, after failure of issue, is restricted to the death of the first taker.
    
      
      Sarah Scott was about nine years old when the testator died. After she had arrived at the age of twenty-one years, she married the plaintiff, Price, and died in about nine months after.
    A case was made in the Court below for their opinion, and they directed judgment to be entered for the plaintiff, Price.
    
      Riddle and Duncan for the plaintiff in error
    contended, that by the death of Sarah Price the legatee without issue, one of the three contingencies on which the limitation over was to take effect had happened. Those contingencies were, 1. her dying before 21,2. her dying unmarried, or, 3. her dying without issue: in either of these cases the bequest was to devolve on the survivors. The words in the will “ then w or either case,” are the construction put by the testator on his own words : and do not relate to the death of a son or daughter, but to the three contingencies before-mentioned. These words make this will different from all other cases already decided, and shew that the testator meant the contingencies to be construed disjunctively. It has been objected, that the limitation over in such case being of personal property, and after an indefinite failure of issue, is void. It is good, however, as an executory devise, which, it is settled, may be of personal property and of money as well as of real estate. 1 Fearne Cont. Rem. (5th edit.) 26. 30. 2 Fearne Cont. Rem. 1. 33. 35. 49. 227. 239. Nor is the contingency too remote: for a limitation over to a survivor or survivors, restrains the dying without issue to the death of the first taker. Nichols v. Skinner.
      
       Keating v. Reynolds.
      
       Executors of Maffet v. Strong.
      
       So where the devise was “ in case she should “ die without issue, then, &c.,” the word then restrains it in the same way. Pinbury v. Elkin. There are many other cases of the same kind, from which it is evident, that Courts have leaned as much as possible in favour of a construction, that preserves the devise over. They cited 2 Vern. 337. 3 Burr. 1634. Sheffield v. Lord Orrery.
      Maddox v. Staines.
      
       Sheppard v. Lessingham.
      
       1 P. Wms. 664. 3 Mass. Rep. 3.
    
    
      Dunlop and Chambers, contra.
    It never could have been the intention of the testator to disinherit a daughter who should marry and have issue and die under 21: as would be the case by the construction contended for by the counsel for the plaintiff in error. This will may be construed so as to contain, 1st. three contingencies; dying before 21 — dying unmarried — dying without issue. 2d. One contingency; dying before 21, unmarried and without issue. 3d. Two contingencies; dying before 21 unmarried — dying before 21, without issue. Either of the two last we contend to be the correct construction. It could not be contended, after the decision in Holmes v. Holmes,
      
       that the first construction is correct, unless on account of the words, “ then or in either casef but these words make no material difference. They refer to the death of any of his sons or daughters, if the second construction is adopted: or or they-may refer to the two contingencies included in the third construction. If there could be a doubt on the words of the devise to Sarah, it. would be removed- by the subse<2uent Revise over the whole estate to his nephew Alexander, viz. if all his sons and daughters should all so die under age an¿ xoithout issue. Money cannot be given subject to a limitation over. Nor will chancery order the-first taker to give security except where the testator has ordered it. The legatee-here had a right to receive 1001. at the age of 18, and then 100/. from year to year: and having received it, it could not be recovered back. They cited Read v. Snell.
      
       Frameingham v. Brand.
      
       Walsh v. Peterson.
      Flanders v. Clark.
      Garth v. Baldwin.
      
    
    
      
      
        Prec. in Ch. 528.
    
    
      
       1 Bay. 80. 86.
    
    
      
       10 Johns. 12.
    
    
      
      
         1 P. Wms. 563.
      
    
    
      
       3 Atk. 282.
    
    
      
       2 P. Wms. 422.
    
    
      
      
        Amb. 122.
    
    
      
       5 Binn. 252.
      
    
    
      
       2 Atk. 642.
    
    
      
       3 Atk. 390.
    
    
      
       3 Atk. 193.
    
    
      
      
         1 Vez. 9, 10.
    
    
      
       2 Vez. 646.
    
   Tilghman C. J.

This is an action brought by Josiah Price, the husband and administrator of Sarah Price deceased, for the recovery of a legacy bequeathed to the said Sarah, by the will of her father, Williani Scott. The question is, whether the legacy was vested absolutely in Sarah Price or went over on her death to her surviving brothers and sisters : (here was read the material parts of William Scott’s will). An executory devise of a chattel to take effect after an indefinite failure of issue would be void, the contingency being more remote than the law permits. It is granted, however, by the counsel for the defendant, that the contingency mentioned in this will is not too reriiote, because, the dying without issue is not indefinite, but restricted to the time of the death of the first taker. But a question has been made whether money can be the subject of an executory devise; of this I entertain no doubt. A sum of money devised to one for life, with remainder to another, may be of great use to the first taker; he may put it to interest or invest it in goods or land, and thus make profit. All that is required is, that on his death his executors pay the principal to the remainder man. Money has this peculiar advantage over other chattels, that the use of it occasions neither loss nor injury, and from time it suffers no decay. The executors of the first taker are not bound to pay over the identical pieces of metal which their testator received, but the like value in lawful mojiey of the country. It was once supposed, that a gift of a chattel for an instant was a gift forever, and that any limitation over would be void. But since the law of executory devises has been established, there has been no difference between money and any specific chattel. The only difficulty in this case, if there be a difficulty, is to ascertain what was the contingency on which the testator intended, that this legacy should go over. From his direction that it should be paid in yearly instalments of 100/. after his daughter arrived at the age of eighteen, and from this being the only provision which he has made for her, it may be presumed, that it was not his intention to hold it long in suspense. Nor can it be supposed that in case Sarah had died before twenty-one leaving issue, it was her father’s will that her children should be deprived of this money. This reflection is so natural and so pressing, that in similar cases (and many similar cases have occurred) no judge has failed to be impressed with it. The law has, therefore, been settled, that where a legacy is given to one and if he should die before twenty-one, or without issue, then to another-, it becomes absolutely vested in the first taker on his arrival at the age of twenty-one. If the devise in this will hád been simply, that in case of the death of either of the testator’s sons or daughters, before attaining the age of twenty-one years, unmarried or without issue, the legacy bequeathed to the one so dying should go over, I presume it would not have been contended, that it would have gone over, upon a death after the age of twenty-one. The cases decided upon that point are too strong to be got over. I need only refer to Holmes v. Holmes, (5 Binn. 252,) where the law was fully considered. But the defendants rely on the subsequent expressions, “then and in either case,” which they say manifest the clear intent of the testator, that the three contingencies before mentioned should be construed disjunctively, that is to say, that the legacy should go over on Sarah’s dying before twenty-one, or unmarried, or without issue. It must be confessed, that without rejecting the words “ in either case,” which I have no right to do, I know not how to construe all the three contingencies conjunctively. Some separation is necessary to satisfy the word either, which must have reference to more than one. But still I cannot suppose, that the testator intended to take the money from his daughter, in case she died before twenty-one leaving issue. I must, therefore. seek for a construction which may preserve the legacy to the daughter’s family upon that event, and at the same time to give effect to the word either. And I think such a construc^on may be f°un(l. The words of the will are, “ in case “ either of my before mentioned sons or daughters should die a before he, she, or they attain the age of twenty-one years “ unmarried or without lawful issue,” &c. I construe them thus : In case either of them die before he attains the age of twenty-one years unmarried, or before he attains the age of twenty-one years without lawful issue; this makes two cases .on contingencies to which the word either may refer, it vests the legacy absolutely on the child’s attaining the age of tWenty-one, and it preserves it in case of a death before twenty-one, leaving issue. In my opinion, it comes nearer to the testator’s meaning than any other construction which can be made, without taking greater liberties with words of the wilí than any Court has a right to take. I shall, therefore, adopt it. It appears then, from the facts stated, that this legacy was vested absolutely in Sarah, the wife of the plaintiff, because she died after the age of twenty-one. Consequently, the judgment of the Court of Common Pleas was right, and should be affirmed.

Yeates J. absent.

Brackenridge J. delivered an opinion concurring with the Chief Justice.

Judgment affirmed;  