
    Clarinda M. Bowker, Administratrix vs. Melvin Bowker, Executor.
    A testator gave and bequeathed as follows: “ Unto my eldest son, M. B., his heirs and assigns, my farm that he now lives on, with all the stock now on said farm that belongs to me, also all my farming tools on said farm, by his paying the following sums as hereafter directed; 1st, to my son, D. B., one hundred dollars a year for seven years, without interest, the first payment to be in one year from my decease,” &c. ; and it was held that upon the acceptance by M. B. of the devise to him, the legacy to D. B. vested, so that, on the' death of D. B. before the expiration of the seven years, his administrator could recover the payments for the years that remained.
    This was an action of contract, and was submitted to the court of common pleas, and, by appeal, to this court, on the following agreed statement of facts : —
    The plaintiff is the widow of the late David Bowker, and administratrix of his estate. David died December 6,1850, leaving Clarinda, his widow, and two children of the ages of ten and twelve years. David Bowker, and Melvin the defendant, were devisees under the will of their father, Liberty Bowker, the material portion of which is as follows : —
    “ I give and bequeathe unto my eldest son, Melvin Bowker, his heirs and assigns, my farm that he now lives on, with all the stock now on said farm that belongs to me, also all my farming tools on said farm, by his paying the following sums as hereafter directed; Istly, to my son, David Bowker, one hundred dollars a year for seven years, without interest, the first payment to be in one year from my decease. 2dly, to my daughter Mary, wife of Robert Sturtevant, one hundred dollars, to be paid as soon after my decease as shall be convenient to pay it; also, to my'wife Kata, fifteen dollars per year, in such things as she needs, or money; also, to pay to my daughter Sarah, wife of Jesse W. Johnson, five dollars per year, in such things as she needs, to commence the first year after my decease.”
    Liberty Bowker died May 21,1846, and his will was duly proved and allowed. The defendant was executor of the will, and accepted the several devises therein made to him.
    The payments falling due to David Bowker on the 21st of May in each year, from 1847 to 1850, both inclusive, were duly paid by the defendant; and this action was brought to recover the payment alleged to have fallen due on the 21st of May, 1851.
    If the court shall be of opinion that the plaintiff ought to recover, she is to have judgment for such sum as the court shall direct; otherwise, to become nonsuit.
    
      P. L. Page, for the plaintiff.
    1. The fact that there were no devises over, is a strong presumption, in this case, that it was the design of the testator to give a vested and permanent interest to the devisees in the property devised to them. Baker v. Bridge, 12 Pick. 27, 33.
    
      2. The defendant, by accepting the devise to him, has tacitly consented to comply with the conditions of the will. Felch v, Taylor, 13 Pick. 133. He cannot accept its benefits, and release himself from its burdens.
    3. The presumption of law is in favor of a vested, rather than a contingent devise. 1 Jarman on Wills, 768 ; Skattuck v. Stedman, 2 Pick. 468; Ferson v. Dodge, 23 Pick. 287, 292, Wight v. Shaw, 5 Cush. 56 ; Stimpson v. Batterman, 5 Cush, 153.
    4. If the postponement of payment appears to have reference to the situation or convenience of the estate, the legacy will vest insta/nter. 1 Jarm. on Wills, 756.
    5. If futurity is annexed to the substance of the gift, the vesting is suspended, but if it appears to have reference to the time of payment only, the legacy vests instanter. 1 Jarm. on Wills, 759, and cases cited; Shattuck v. Stedman, 2 Pick. 468 ; Goddard v. Johnson, 14 Pick. 352. In this case futurity ha; reference to the time of payment only, being for the advantage of the estate and the convenience of the defendant.
    6. If the words “ and his heirs ” were inserted in the will, after “ David Bowker,” there can be no doubt that such heirs would be entitled to receive such part of $700 as was unpaid at the death of David. But it is not necessary, even in a devise of real estate, to insert the word “heirs.” Baker v. Bridge, 12 Pick. 27, 30. A fortiori, it is not necessary in a bequest of personal property. ,
    7. Though it was formerly considered the rule that, when a devise was made to one at twenty-one, or if he attain that age, it was a contingent devise, rather than a vested one, it is now otherwise. Shattuck v. Stedman, 2 Pick. 468; Fv/rness v. Fox, 1 Cush. 134.
    
      J. Rockwell, for the defendant.
    1. This legacy is charged upon real estate, and, therefore, upon the death of the legatee, sinks into the land. Swinburne on Wills, pt. VII. § 23, pp. 564, 565; Duke of Chandas v. Talbot, 2 P. Wms. 601; Pawlett v. Pawlett, 1 Vern. 204 321; Yates v. Pheitiplace, 2 Vern. 416 ; Jennings v. Looks, 2 P. Wms. 276 ; 1 Roper on Legacies, 650-655, where the above cases with others are commented on; Prowse v. Abingdon, 1 Atk. 482; Gawler v. Standerwicke, 1 Bro. C. C. in note to Green v. Pigot; Harrison v. Naylor, 3 Bro. C. C. 108. There is an exception to the above rule, “ where the payment is postponed from a regard to the convenience of the devisee, or tb circumstances of the estate charged with it.” 1 Roper on Leg. 656-668. This exception does not apply to this case. Again, the legacy is expressly “ without interest,” which distinguishes the case from Paterson v. Ellis, 11 Wend. 259; Jacobs v. Bull, 1 Watts, 370; 1 Roper on Leg. 573. The circumstance that the very next legacy charged upon the same land is “ to be paid as soon ,after my decease as shall be convenient to pay it,” shows that the payment to David was not to be postponed for the convenience of the devisee, and therefore is governed by the rule and not the exception. Unless the whole of this instalment is recoverable, no part can be recovered. Wiggin v. Swett, 6 Met. 194. In Shattuck v. Stedman, 2 Pick. 468, and Furness v. Fox, 1 Cush. 134, the legacies were not charged upon land, and those cases, therefore, are not applicable. The circumstance that the stock on the farm was also given to the defendant, makes no difference, as the farm was the principal thing, and the-legacies were charged upon it. See, also, 1 Jarman on Wills, 755, el seq.; Taylor’s Precedents of Wills, 582, and note; Birdsall v. Hewlett, 1 Paige, 32; Harris v. Fly, 7 Paige, 421; Taft v. Morse, 4 Met. 523.
    2. It is well settled, that if the clause in question had been in these words, “ to my son David Bowker, one hundred dollars a year, without interest, the first payment to be in one year from my decease,” the payments have terminated with his death. Sauery v. Dyer, Amb. 139. The words “ for seven years,” merely limit the time, and do not in any other way alter the effect of the clause.
    3. There is no express gift of this legacy to David Bowker previous to the time of the payment, but futurity is of the substance of the legacy. 1 Jarm. on Wills, 760, and note 1.
    
      Page replied.
    1. This legacy is not charged upon the real estate, but is a personal charge on the defendant, provided he accepts the property devised to him. The expression used in the devise to Melvin, “ by his paying,” has the same meaning as “ on condition of his paying,” which is given as an example of a personal charge upon the devisee in 4 Kent’s Com. 540. See, also, Felch v. Taylor, 13 Pick. 133. The real estate is never to be charged with the payment of legacies, unless the intention of the testator so to charge it is either expressly declared, or fairly and satisfactorily to be inferred from the language of the will. 1 Roper on Legacies, 670 and note, and cases cited, 682, 683; Seaver v. Lewis, 14 Mass. 83 ; Kightley v. Kightley, 2 Yes. jun. 328.
    2. Even admitting the legacy to David to have been charged on the real estate devised to Melvin, it comes within the exception to the rule contended for by the defendant. It is not necessary that the will should specify, in direct terms, that the postponement of the legacy was for the convenience of the principal devisee, or in reference to the circumstances of the estate, in order that it should come within the exception ; but the court will draw such inference where the circumstances warrant it. The rule adopted by courts would seem to be, that, unless it appears directly from the words of the will, or by just inference, that the testator intended the postponement of the payment to the particular legatee on account of his personal advantage, it will be considered as made for the convenience of the principal devisee, and for the benefit of the estate, and, therefore, be a vested legacy. 1 Roper on Leg. 656-668, and cases there cited; Lowther v. Condon, 2 Atk. 127 ; Ewes v. Hancock, Ibid. 507 ; Wither v. King, 2 Bro. P. C. 135; Sherman v. Collins, 3 Atk. 319; Hodgson v. Rawson, 1 Yes. sen. 44; Timstall v. Brocher, Amb. 167; S. C. 1 Bro. C. C. 124; Manning v. Herbert, Amb. 575; Clark v. Ross, 2 Dick. 529; S. C. 1 Bro. C. C. 120, in notes ; Kemp v. Davy, 1 Bro. C. C. 120, in notes. In Taft v. Morse, 4 Met. 523, the court held the legacy to be charged on the land, because the words " out of the estate ” were used. So in Gardner v. Gardner, 3 Mason, 178; S. C. 12 Wheat. 498. No such words are used in this will.
    
      3. It was not real estate only that was devised to Melvin, but all the stock and farming tools also were given to him by the same clause of the will. If it should be considered that here was a charge upon real estate, then the rule applies, that when the legacy is chargeable on the personal as well as real estate, then so much thereof as the personal fund would extend to pay, should go to the executor or administrator. 1 Roper on Leg. 653.
    4. No such rule as that contended for by the defendant ever existed in this commonwealth.
   Metcalf, J.

The court are of opinion that, by the true construction of the will of Liberty Bowker, the sum of seven hundred dollars in money was bequeathed to his son David, the plaintiff’s intestate, on no contingency, except that of the acceptance, by Melvin, the defendant, of the devise to him of the farm and stock. If the defendant had refused to accept that devise, the farm and stock would have descended as intestate property to all the heirs, and David would have been entitled to his share of it, instead of the money. We have no doubt that the testator meant that his bounty to his son David, as well as to his other legatees, should immediately attach, and that only the time of payment should be postponed. Such being his meaning, the legacy vested upon the defendant’s acceptance of the devise made to him, and he, by that acceptance, became liable to pay it at the times prescribed in the will. See Furness v. Fox, 1 Cush. 134; Bac. Ab. Legacies, E. 2; 1 Jarm. on Wills, (1st Am. ed.) 759. If David had died before the testator, leaving issue who survived the testator, it cannot be doubted, we think, that such issue would have been entitled, under the Rev. Sts. c. 62, § 24, to the legacy bequeathed to him.

The plaintiff is to have judgment for one hundred dollars, with interest from May 21, 1851, when that sum would have been payable to her intestate, if he had been then alive.

Judgment accordingly.  