
    Underwood vs. Dismukes.
    "LEGACY. Vesting of favored in law, and why. The vesting of legacies is favored in law. Generally because the law will not intend that a testator means to die partially intestate. Especially, of those to children, on the presumption that a testator naturally desires their families to succeed to their interests: — and o^ those to others, because the tying up of property is inconvenient to the legatees, and against the interest of society.
    SAME. Indicia of legacy being vested. Giving the intermediate interest of a pe" cuniary legacy is so clear an index of intent to vest the property, as to over_ come the strongest formal and verbal connection of the estate with the time of payment. Mo, where the .testator’s whole real and personal estate is vested in trustees, to be used for the support and education of his family till a specified time, and then to be equally divided amongst his children and their heirs, — the children have, in the profits, a vested right of present common enjoyment, and in the corpus of the estate, a vested right of future several enjoyment;
    Same. Construction, The arguments are drawn from the several parts of the will.
    Thomas Royster of Goochland, Virginia, died in the year 1807, seized and possessed of a tract of land there containing 383 acres, and of divers slaves and other personalty. De-left a widow and eight children. He made a will which was. dated the 14th of May, 1807, and admitted to probate in. September following; and letters testamentary were issued' ta bis executors, David Royster, Anderson Royster and Paul Dismukes, of whom the first and last named alone acted in the administration of his estate. It, among others, contained the following provisions:
    “I desire that the lands whereon I now live, be sold by my executors, hereinafter named, at public auction, upon such terms as they may direct; and that the proceeds of such sale, together with what money I may. have, and all the outstanding debts due me, may be laid out in the purchase of another tract of land by said executors, and a deed taken for the same to all my children and their heirs. And it is^ my further will ¡and desire that my wife, Agness Royster, shall enjoy the lands so purchased during her natural life, — as also, all my pther property, which may not be disposed of by my executors, as is hereinafter directed.
    “It is also my desire that my executors shall and may, from time to time, at their discretion, sell on such terms as they may deem expedient, any pare of my perishable estate. And that they reserve a sufficiency from my estate to support and raise my family until a division of my estate shall take place as is hereinafter directed. I also desire that my sons be put to some trade by my executors, that (they) may become use-? ful to themselves and society; and that my younger children may get some sort of an education; and that my executors, lay out the profit arising from my estate, after supporting my family and educating my children, at their discretion, for the benefit of my estate. And after the whole of my children shall arrive to manhood; or so soon as my two youngest children arrived to the age of eighteen years, or marriage, then I direct a division of my estate to he made amongst all my children and their heirs, as equally as the nature of the case may admit of: reserving to my wile a sufficiency of my estate, if she be then living, to live on during her life, both real and personal; so that she cannot suffer for want of any thing in the opinion of my executors, — and the reserve of my estate so made her by my executors, at her death, shall be equally divided among all my children and their heirs. It is my further will and desire, that if any part of my estate can be conveniently spared, in the opinion of my executors, before a division of my estate, as first directed, among my children, — - a loan may be made by my executors of such property as they may think proper,,to such of them as may marry, which shall .be brought together, if living at said division, and divided as above directed, always taking care to keep a sufficiency for .raising the younger children.”
    Prudence, one of the testator’s daughters, intermarried with William Underwood, and had issue, the complainants, Julian J. and Virginia M.; and Betsy, another of his daughters, intermarried with Robert Rutherford. The family removed from Virginia to Kentucky, where the executors had purchased for them a tract of land. David Royster remained in Virginia, where he managed the affairs of the estate, and Dismukes removed to Kentucky, and became the principal acting executor. Two negroes were loaned to Underwood, who, having become embarrassed, on the 3d of January, 1818, entered into a sealed agreement with Dismukes, in which he engaged to deliver up the negroes to Dismukes, ¡who was to hire them out, allowing him the hire till the final division of the estate. And, reciting that Dismukes had loaned him $1026, to be paid so soon as the possession of the ne* groes should be delivered to Dismukes, he stipulated that Dis-mukes was to have the control of the negroes till that loan should be repaid. Underwood’s wife was already dead, and he died himself in Florida in 1821. Two negroes had, in May 1811, in like manner, been loaned to Rutherford, who took them to North Carolina, where they were sold for his debts. In 1823, when the testator’s two youngest children ,came of the age of 18 years, a division was made, when it was found that each heir was entitled to $ 1274 25 cents; and the money loaned by Dismukes to Underwood having .never been paid, he kept the negroes that Underwood placed in his possession in 1818, in discharge of the debt. In this settlement, the .complainants being infants, were not represented, nor were they present on the occasion.
    On the 5th of January, 1835, they filed their bill in the Chancery Court at Gallatin, against the executors of their grandfather, Thomas Royster, claiming, under his will, to be entitled to one-sixth part of his estate, upon the ground that the legacies to the children .of the testator did not vest till the two youngest children arrived at the age of 18 years. And that as both their mother and Mrs. Rutherford had died before that period, the property had consequently never been reduced into possession by their husbands, and ought to have been assigned to them, the complainants, on the final division in 1823, as “heirs” of their mother and deceased aunt. The only question, therefore, which was debated in this court was, whether the legacies were vested or contingent, according to the will of Thomas Royster.
    Dec. 27, 28.
    His Honor, Chancellor BRamlitt, who heard this case at October Term, 1838, being of opinion that “the personal estate of Thomas Royster did not vest in his children and their heirs until his two youngest arrived at the age of eighteen years or marriage,” decreed an account of it, with special directions. From this decree the defendants appealed in error.
    Guild & Cook for the complainant,
    said — The time of payment of the legacy in this case was the time when the legacy was to vest, and Mrs. Underwood having died, previous to the happening of the contingency on which the payment was to be made, the legacy did not vest in her. That legacy by virtue of the will vests in her heirs, the complainants, after the time of payment arrives. 2 Williams on Ex. 767-75; Hanson v Graham, 6 Ves. 239; 1 Roper on legacies, 383; 4 Ves. 399; 3 Ves. 363, 120, 75; 1 Roper 386, 392, 203; 2 Williams on Executors, 791; 9 Ves.. 231; 1 Burrow 227; Sansberry v. Read, 12 Ves. 75.
    If legacies are given at 21, or if, in case of, when, or provided, the legatees attain 21, or any other future definite period, these expressions annex the time to the substance of the legacy; and make the legatee’s right to depend on his being alive at the time fixed for its payment. 2 Williams Ex. 766.
    The words, after, or so soon, in this will, have the identical qualified meaning and operation as the words, at, if, when,, provided, &c. and are a condition precedent to the gift.
    In the case of Hanson v. Graham, it was determined that the words, at 21, if, when, &c., would be controlled by the testator giving, in the mean time, the whole interest, arising from the fund to the legatee, on the ground that the provision afforded a presumption that the testator intended the legacy to Vest before it became due. Yet it is there determined that if the gift of maintainance or interest, be not coextensive with the whole amount of interest, the legacy will .not vest prior to the arrival of the period at which it is to be paid. By this will, part of the interest or profits were to be applied by the executors to the support of the family, and the balance to be laid out and vested in property for the benefit, as he calls it, of his estate. 6 Yes. 239; 2 Williams Ex. 774.
    In the foregoing cases the corpus of the property was given, with a postponement of payment. In the case under consideration, there is no previous gift of the property, merely a disposal of part of the property — and then he directs — “So soon as my youngest children arrive at the age of eighteen years, or marriage, a division of my estate to be made amongst all my children and their heirs equally as the nature of the case will admit of.” The gift and payment in this case is one and the same thing. The time appointed for the division of the property or its payment is the very essence of the gift of it. Therefore, the legacy did not vest in Mrs. Underwood. 1 Roper 497, 500; 3d Yes. 363.
    White for the defendants
    said — The question here, under the third clause of the will of Thomas Royster, is, whether the bequest contained in it became vested in the children upon the death of the testator, if so this bill cannot be sustained by complainants as the heirs at law of Underwood and wife. It is a rule jin the construction of a will that it must be so construed that the whole may be effectual and consistent. And that that construction is most favoured which will prevent a failure of the bequest. And again, that the words of a will must"be taken according to their natural import unless some obvious inconvenience or incongruity will result. And that the construction must be made on the whole will taken together and must be such as to carry into effect the intention of the testator. 4 Comyns Dig. 193 and the authorities there referred to. With these principles in view let us examine the will.
    The testator in the first clause of the will directs his lands to be sold¡¡by his executors, and that the proceeds of the sale together with his money and the outstanding debts due him be laid out in the purchase of another tract of land, and a deed taken for the same to all his children and their heirs. Here then is a present vested interest in the land to be purchased with the large fund set apart for that purpose. A man’s land is always regarded with more concern than his personal property. And when we see the disposition made.by the testator of this fund it furnishes a strong evidence that he did not intend- to create an uncertain and contingent interest in the balance of his estate which he'gives to his children.
    The second clause gives the executors the power to sell any part of his perishable estate which they may deem expedient. But this is all in keeping with the balance of the will. It is evidently subservient to the main design that his children shall have the' benefit of the whole of his property, but in a way that he considers will be most for their interest.
    We come now to the third clause. And I will observe that the' testator in making a will is always supposed inops con-sitii, and therefore a liberal construction is placed upon it in order to effectuate the intent. After the whole cf his children shall arrive to manhood, or so soon as his two youngest children arrive to the age of 18 years' or marry, then he' says: “1 direct a division of my estate to be made amongst all my children and their heirs as equally as the nature of the case may admit of &c.” “Then I direct a division of my estate.” Is it not palpable from these words that he intended his children to have absolutely his property, although for satisfactory reasons he thought proper to postpone the division. And we see what these reasons were, for they are stated in the first part of this clause. He considered no doubt that his' family could be better supported and his children educated out of the profits by its being kept' together than if it were then divided. His sons are to be put to a trade which of course' would render it improper that they should at once be put into' possession of their property.
    Suppose the testator had directed his property forthwith to he divided, then there would be no question about its being a - vested interest. These words ex vi termini in reference to property import a gift. The idea is precisely the same if it is' to be divided at a future day, the time of enjoyment is only' then postponed. These words in reference to property are as strong and' as clearly indicate the intention to create a vested interest as payable or to be paid to in reference to pecuniary legacies, which according to all the decisions will have that effect. 2 Williams 766; 1 Roper on Legacies 378. The presumption of law is that the testator intended it to vest immediately and a contraiy intent must be clearly indicated before the Court will place that construction upon it. 2 Williams 769; 1 Roper 377. It is altogether an unnatural construction to suppose when he is making his children the sole objects of his bounty, that he did not intend them to have his property absolutely and at all events.
    The same idea is carried out in the next clause, showing that all the property is absolutely for his children. Such of them as marry are to have a portion of the property at once. Keeping a sufficiency for the younger children, for whom thd executors are guardians. They are, to be sure, directed to bring it in at the division. But this is merely directory to them and in order that there may be a more just and equal division among all the children. A common sense view of the will, it seems to me, can lead to but one opinion about it.— That the testator intended at once to vest the property, and merely postponed the time of dividing it. A strong and irresistible argument in the law against the opposite construction is this: — It is certain the testator did not intend to die intestate, and yet, that is the inevitable consequence, “if the whole of his children shall not arrive to manhood, or if his two youngest children shall not arrive to the age of 18 or marriage-” It would then become a lapsed legacy and this whole bequest would fail; 2 Salkeld 415; 2 Williams 770. It will be clearly seen by reference to the autlioritiés that in á will like this, time cannot be regarded as annexed to the substance of the gift; 2 Williams, 767-8, 770-3; Fearne' on Remainders, note 553; 1 Roper, 382-3-6-7-8, particularly Booth v. Booth, 4 Vesey 400; 1 John. Chan. 497 — S; 2 Dev. & Bat. 589-91-6-7-8.
    From looking into the authorities it will be seen, there is no stem, inflexible rule of the law which ia applicable to all circumstances and all cases. And there are exceptions to all the rules which have'been adopted. The object of them all-being to carry into effect the will of the testator. See Earl v. Grim', 1 John. Chan. 497-8.
    January 3.
    If our construction is right it was then a vested interest in* the wife of Underwood, to which her husband and his representatives would be entitled. And must pass through a course" of legal administration: Clancey 4-11-12; 6 John. 112,117, 118; l Yer. 40-1, 51-2-3; 4 Yer. 10, 14.
    The words “and their heirs” in the 3rd clause of the will, it is evident are words of limitation, and that the children oí these legatees, can take only through succession to their parents, and not by way of substitution. The same words are used in the first clause of the will, and it is presumed, therefore, with the same meaning. See 2 Dev. & Bat. 597,-where that construction is placed on the same words.
    F. B. Fogg, on the same side,
    cited Perry vs. Rhodes, 2 Murphy, 140; Doe vs, Prigg, 8 Barn. & Al. 231; Doe' vs. Jesson, 2 Bligh, 1; 6 Mumford’s Reports, 156; 1 Hill’s S. C. Reports, 358; Orford vs. Churchill, 3 Ves. & Beames, 59; 1 Jacob’s & Walker, 388, note 2; Haye’s-Elementary Essay on the Construction of Limitations to Heirs, &c. A devise to children, son’s, &c. differs in nothing from a designation of individuals by name, except that a devise to several nominatim as tenants in common fails as’ to the shares of those dying before the testator. Roper on-Legacies, 46. When a testator is clothed with the character' of a parent, it being his duty to provide for his children at his death, a court of equity presumes that he intended to do so by his testament. Holloway vs. Holloway, 5 Ves. 403; Butter vs. Ommaney, 4 Russell, 70, 3 Con. Eng. Ch. R. 572; 1 Randolph, 319; 4 Henning & Mumford, 411.
   Reese, J.

delivered the opinion of the court.

The rights of the complainants to maintain this bill, under the circumstances which have occurred, depends upon such a construction being given to the will of their grandfather,. Thomas Royster, as shall establish, 1. That the bequests of the will did not, upon the death of the testator, vest a' personal interest in the children of the testator to the property mentioned in the third clause of the will, hut that the same was contingent upon the arrival of the younger children to the age of eighteen years, or upon their marriage. And 2. In the event which has happened, of the death of one of them, the mother of the complainants, before the arrival of that period, that the complainants, upon the arrival of the period referred to, are entitled to claim a division of the property, under and by virtue of the will, as being substituted to their deceased parent, by force of the term “heirs,” in the direction which is given, that an equal division should take place among all the children, and their “heirs.”

1. Was the interest vested or contingent? This, of course, depends upon the intention of the testator, to be collected from the entire instrument. Whatever rules of construction courts of justice may have adopted in questions of this sort, .are to be considered as guides in exploring doubtful intention. There is no rule of property, no principle of public policy, to exert a controlling influence. If the purpose of the testator was, to annex time to the gift, so as to make it essential to the gift, then the interest is contingent. But if his purpose was merely to postpone the division and distribution of his property to the time indicated, intending it, at all events, to belong to his children, then the interest was vested.

That the latter was the intention of the testator, we think manifest from several considerations. And first, the whole estate, real and personal, was to be enjoyed by all his children, as a class. They were the exclusive objects of his bounty, and equally the objects of his bounty. Not a cent is given to any other person; nor is there any limitation over in favor of children or other person. The entire corpus of his estate, and all the intermediate profits were to belong to, and to be enjoyed by his children and his wife, the interest with the latter, determining with her life. Perhaps no case -can be found, marked by this equal and exclusive bounty to children, and where the bequest embraces the whole estate, in which it has been insisted, that the gift itself was contingent, merely upon the ground that the formal words of donation were connected with those which indicated the time of enjoyment.

The cases upon this subject, which constitute a somewhat vexed branch of legal learning, have been mostly those where legacies, bearing no large proportion to the corpus of the estate, have been given to persons other than the heir at law, or those entitled to the residue under the will. There are some general principles stated, and well stated, by an able judge, in the recent case of Vanhook vs. Vanhook, 1 Dev. and Bat. 589, which strengthens the view of the case which we are now taking. “The law,” he says, “leans in favor of the vesting of legacies, because the convenience of the legatees, and the interests of society are opposed to the tying up of property, and keeping it out of the commerce of life. It favors the vesting of legacies, more especially when given to children, or those standing in a like relation to tht; testator, because it presumes that testators naturally desire that the families of legatees, who die before the time for actual receipt of the legacy, shall succeed to the provision made for their parents. And it also favors the vesting of legacies, because, it will not intend that the testator meant to die partially intestate.”

2. We think the interest in this case a vested one, because there is no doubt that the land, directed by the first clause of the will to be purchased by the proceeds of the Virginia land, the cash on hand, and the outstanding debts, was, by the very terms of the devise, vested in all the children. What reason could exist why the testator should direct a sale of his land, and that the proceeds, cash on hand, and debts, should be vested in other lands, and should be absolutely and at once given to his children, while their interest in his negroes and other property was to be contingent? And besides, it appears from other parts of the will, that the power and control of the executors, and testamentary guardians over this real estate, directed to be purchased, were to be co-extensive with that over the balance of the property, and the division, which they are directed to make among the children and their heirs, embraces as well that real estate, as the pest of the property.

3. Again, those clauses of the will which appropriate the profits of the estate to the education of the children, and the support of the family; which direct the surplus of these pro? fits to accumulate for the benefit of the estate, and of those to whom it is ultimately to be paid over, and which empower the executors to place a portion of the corpus, or principal of the estate, in the hands of certain of the children upon loan, subject to be brought into contribution or collection, in the ultimate division of the real and personal property, involve in their effect and operation, and are evidence of a present gift of the body of the estate to the children of the testator.

It is well settled with regard to pecuniary legacies, that however in point of terms and form, the gift itself, and the time of payment may be annexed; still, if interest upon the legacy is, in the mean time, given to the legatee, the legacy itself is vested. In this case, all the children and heirs at law of the testator constitute, as it were, one legatee; and the entire profits of the estate are to be enjoyed, or to accumulate for the benefit of this legatee. The legacy itself, therefore, by the authorities applicable to these circumstances, will be held to vest.

4. Again, The case of Booth vs. Booth, 4 Ves. 404, establishes, that where a bequest is of a residue, and the words are such as, in case of a legacy merely, would have made the legacy contingent, the bequest of the residue shall not be so held; and upon this distinction, that it is difficult to suppose that the testator meant to die intestate as to the residue. The distinction adopted by this authority applies with more force to the facts of the case before us, than to those of the case in which it was taken.

2. But if the legacies in the present case, were contingent, still the complainants, in the event which has happened, could not maintain their suit. The word “heirs” is used three several times in the will, and in each instance, as a term of limitation. There is, clearly, nothing in the will to control the obvious and legal meaning of the term, so as to embrace grand children, and substitute them as purchasers under the will. It is unnecessary, however, to dwell upon this point, or to sustain the opinion announced, by a reference to authorities, numerous though they be, upon this head of juridical discussion; for however clear the point may be, and we certainly deem it so, it is rendered unnecessary to a decision of the case, by the view taken of the first question.

The decree, therefore, will be reversed and the bills be dismissed, but without costs.  