
    Samuel H. Beall, vs. James Deale and James Deale, Jr.
    
      December, 1835.
    I bequeathed the residue of bis personal estate to bis children and grand-children, and after 'expressing his expectation in his will, thatE would leave her real estate to his son B, declared, that in case she should devise, or otherwise convey her real estate to any other of his legatees, than the said B and his heirs, that such legatee should transfer and convey all his, or her right, title, and interest, in and to the estate so devised by the saidE (free from incumbrance) to the said B and his heirs on her decease, or as soon thereafter as could be conveniently done. In case of his or her refusal so to do, then all the estate devised by I to him or her so refusing, should be forfeited, and go to the said B and his heirs for ever. After the death of I, E died, having devised a part of her real estate to one of I’s grandsons, who was a minor at the death of both E and B. This grandson received a sum of money under I’s will. Upon a bill filed by the administrator de bonis non of B, claiming to recover the amount of the legacy received by I’s grandson. It was held,
    
      1st. That the death of B, during the minority of the grandson, the devisee of E, did not discharge him from the obligation of performing the condition annexed to his legacy under Fs will, upon his arrival at full age.
    2nd. The legacy to the grandson under Fs will, was a vested legacy, dependent upon a condition subsequent.
    3d. That the legacy to B and his heirs, in this case, is to be construed as to B or his heirs; so that upon B’s death, living the grandson, he was bound to convey to B’s heirs, or forfeit the legacy under his grandfather’s will.
    4th. That the grandson was not in default during his minority, by not conveying to B; a conveyance being an act which a minor could not legally perform.
    5th. That the duty of conveying the estate which the grandson acquired under I’s will to B or his heirs, devolved upon him without a demand.
    6lh. That the will of I did not present a case of an election to his grandson, to take under the will of his grandfather or E.
    7th. That the complainant was entitled to recover the sum received by the grandson as legatee of I, with interest, from the time he arrived at full age, and became able to fulfil the condition imposed by I’s will; and that a part of the legacy lost by had debts during the minority of the grandson, should not be abated from the claim.
    Appeal from the court of Chancery.
    The appellant as the administrator de bonis non of Benjamin Franklin, and surviving husband of his widow and executrix, filed the present bill on the 23d of September 1833, to recover of the appellees the amount of a legacy bequeathed by Jacob Franklin (who died in 1817) to James Beale Jr., upon a condition which it was alleged, had not been complied with.
    The circumstances of the case, and the provisions of the wills, out of which the questions arise, are stated by the learned Judge who delivered the opinion of this court.
    
      Bland, Chancellor, on the 28th of December 1833, dismissed the complainant’s bill with costs ; being of opinion, that during the life time of Benjamin Franklin, the defendant James Beale, Jr. not having, by reason of his infancy attained a legal capacity to convey, or to refuse to convey the estate given to him by the will of Jacob Franklin, the said estate became by the death of Benjamin Franklin absolute and unconditional.
    
      From this decree, the complainant appealed to the court of Appeals.
    The cause was argued before Buchanan, Ch. J. and Stephen, Archer, Dorsey, Chambers, and Spence Judges.
    Alexander for the appellant, contended—
    1. That the will of Jacob Franklin raised a case of election, and if James Deale, Jr. had attained his majority before the death of Benjamin Franklin, he would have been bound to elect; nor did the death of Franklin, during his minority, relieve him from such necessity, because the intentions of the testator would be fully gratified by a conveyance now, to the heirs of B. Franklin. The condition, upon which alone the right to the legacy bequeathed Deale by Jacob Franklin, was to become absolute, was not the performance of a personal service by the former to Benjamin himself, but to him, or his heirs if he should be dead when the time for its performance arrived. The partial impossibility of a condition, does not relieve the party from the entire performance, but only protanto. Coke Lit. 219 (a) Lit. Sec. 352, 353, 354. Perkins 817. 3 Com. Dig. title (condition) (1.) The condition that he should transfer to Benjamin and his heirs, is to be considered in the disjunctive, and the impossibility of performing the one, does not dispense with the other, unless the party who claims the performance, has created the impossibility. 3 Com. Dig. title (condition) K. 2. Thomas vs. Howell, 1 Salk. 170. But Deale might have performed the condition during his minority, and his failing to do so, works a forfeiture of the legacy. 4 Kent’s Com. 121. Coke Lit. 246 (B) 6 Petersd. Jibr. (condition) 29. Regarding the will then, as creating merely a condition, the complainant is entitled to a decree. It is not however a condition, but the case of an election, and consequently the intention of the testator possesses a more obligatory force. Blake vs. Bunbury, 1 Ves. Jr. 522. Moore vs. Butler, 2 Scho. and Lef. 266. Long vs. Long, 5 Ves. Jr. 447. Thelusson vs. Woodford, 13 Ves. 218. 2 Mad. Ch Pr. 48. In a court of Equity, an infant is as much bound to elect as a person of full age. The court will elect for him. 2 Sch. and Lef. 266.
    5 Bro. P. C. 173. Gretten vs. Howard, 1 Swans. 413. Reynolds vs. Torin, 1 Russel C. C. 129.
    2. The defendants are liable for the whole sum received from the executor of Jacob Franklin, with all its accumula lations ; and they are liable to the personal representative of Benjamin, as the right to its receipt accrued in his life time.
    Magruder and Pinkney for the appellees.
    1. The estate given to James Deale, Jr. is a conditional limitation. It was a vested interest, subject to be divested upon his failure to do a particular act. 1 Rop. 523. And as the act could not be performed when he took the estate, he holds it free from the condition. Burleton vs. Humfrey, Ambler 266. That by the death of Benjamin Franklin, before Beale was in a situation to perform the condition, he was exonerated from it altogether.
    2. That supposing this not to be the case, the heirs of Franklin, and not his personal representative, should take advantage of the breach. It was to them, and not the administrator, that the conveyance was to be made. This has been said to present the case of an election, but it is not so. Before the death of Miss Battee, Deale had no certain interest in her estate, and therefore, when he took the legacy given him by Jacob Franklin, there was no ground, for an election. 2 Mad. Ch. Pr. 57. But treating it as the case of election, and the present complainant cannot recover; because he elected to take the legacy, and consequently, the heirs of Benjamin, and not his administrator should be before the court.
    3. Assuming that Beale was bound to convey to the heirs of Benjamin, or forfeit his legacy, still the forfeiture cannot be enforced without proof, (of which there is none) that he was called on to do so, and refused.
    
      4. The attempt to prove laches in the guardian, has failed, and as he paid the money over to his ward before a demand by the appellant, there can be no recovery, supposing the other objections untenable.
   Stephen, Judge,

delivered the opinion of the court.

The question involved in this appeal, and which this court has to decide, arises upon the following statement of facts. Jacob Franklin, by his last will and testament, bequeathed the residue of his personal estate to the children of his daughter Mary Deale, and to his own children, Samuel, Anne, Benjamin, and Thomas. Under this bequest, the executor of Jacob Franklin paid to James Deale the guardian of James Deale, Jr. who is one of the children of the testator’s daughter Mary, on the'20th of February, 1821, the sum of $706.19. This sum was permitted to accumulate, so that on the 16th of September, 1831, when the ward attained his age of 21 years, it amounted to the sum of $1128.56, and consisted, in part, of cash and stock of the Farmers Bank of Maryland, amounting to the sum of $715.39 cents; and half of a note of William Warfield, endorsed by Worthington and Anderson, amounting to the sum of $413.19 cents. And Jacob Franklin, the testator in his will, after expressing his expectation that Mrs. Elizabeth Battee, would leave her real estate to his son Benjamin, declares his will to be, that in case she should “devise or otherwise convey her real estate to any other of his legatees and devisees above named than the said Benjamin and his heirs, that such legatee or devisee, legatees or devisees, should transfer and convey all his, her or their right, title and interest in and to the estate, so conveyed or devised to him or them by the said Elizabeth Battee, free from incumbrance to the said Benjamin Franklin and his heirs, on her decease, or as soon thereafter as could conveniently be done, or otherwise; in case of his, her, or their refusal so to do, then all the interest, right, title and property, thereby devised and bequeathed to him, her, or them, so refusing, should be forfeited, and should descend and go to his said son Benja min Franklin and his heirs forever.” After Jacob Franklin’s death, Mrs. Battee died leaving a will, whereby a part of her real estate was devised to James Beale, Jr., who was at the time of her death a minor, under the age of twenty-one years, and he remained an infant until some time after the death ol Benjamin Franklin. The appellant is the administrator de bonis non of Benjamin Franklin, and has filed his bill in Chancery to recover, the legacy bequeathed to James Beale, Jr., by the will of his grandfather. His right to recover to any amount is contested, upon the ground principally, that by the death of Benjamin FrankUn, during the minority of James Beale, Jr., he was discharged from the performance of the condition imposed by the will of Jacob Franklin ; and in relation to the amount for which they shall he held responsible (if responsible at all) the defendants say, that James Beale, the guardian, invested a part of the sum which he received from Jacob Franklin’s executor, in a promissory note of one William Warfield, endorsed by Beale M. Worthington and James Anderson, which has been unproductive by the subsequent insolvency of Warfield and Worthington ; and the failure of the holder to give notice of the non-payment of the note, to Anderson the last endorser; and under the circumstances, it is insisted, that neither guardian nor ward can be made answerable for the sum thus lost. It appears by the answer of the guardian, that the notice of non-payment to Anderson the endorser, was delivered by the agent of the guardian to a certain James Purdy, a neighbour of said Anderson, who promised to deliver it on the same day to said Anderson, or leave it at his place of abode; but who in fact delivered it to a slave of said Anderson, who the said Purdy met on the road; and that not being able to prove the delivery of the notice to Anderson the indorser, he was non-suited, in the action instituted against him. The Chancellor dismissed the complainant’s bill, on the ground, that Benjamin Franklin having died during the minority of James Beale, the legatee, and before he had a legal capacity to convey or to refuse to convey the legacy given to him by the will of his grandfather became absolute; and that the complainant was not entitled to sustain his bill, for the recovery of the said legacy. In this opinion of the Chancellor we cannot concur. We do not think that the death of Benjamin Franklin during the minority of James Deale the legatee, discharged him from the obligation of performing the condition annexed to his legacy; we think it was a vested legacy, depending upon a condition subsequent, which he was hound to perform, and that the death of Benjamin Franklin before he arrived to the age of twenty-one years, was no excuse for its non-performance, and did not render his legacy absolute. We think that the principle is well established upon authority, that in such a case the copulative “and” is to be taken disjunctively, and that the true construction of the will is, that upon the contingency of Benjamin’s death, before the legatee was legally competent, to convey the estate devised to him by the will of Elizabeth Battee to Benjamin and his heirs, he was bound to convey the same to his heirs. We think, that the heirs of Benjamin Franklin, as well as Benjamin himself, were objects of the testator’s bounty and benevolence, and that if Benjamin were dead, when James Deale arrived at age, and acquired a legal capacity to convey, he was bound to convey to the heirs of Benjamin, or that he would forfeit the legacy bequeathed to him by the will of his grandfather. The doctrine appears to be well established by the most respectable authorities, that where an estate is given to an infant, defeasible upon the non-performance of a condition subsequent, the infant is bound to perform the condition, or the estate will be defeated; as if an estate be given to an infant to be forfeited in case he marries without the consent of the testator’s executor; in such case, if the infant marries without such consent, the estate is forfeited; because the infant is competent to enter into the contract of matrimony, during his minority; and may consequently be guilty of a breach of the condition, before- he attains the age of legal majority. See 2 Vernon, 336, where it is said, “a male infant is competent to enter into the matrimonial contract at the age of fourteen years, and a female at the age of twelve.” But where the condition subsequent cannot be performed, before the infant’s legal incapacity ceases, there, the forfeiture does not attach during his minority, because there can be no breach of the condition, until the infant acquires a legal capacity to perform it. Wherever therefore, the authorities say, that an infant is bound to perform a condition subsequent annexed to his estate, they mean that he is bound to perform, during his minority, only such acts, as the law authorizes and enables him to perform. In 1st Fonb. 89, 90, the principle is stated to be, that “where an estate is given to an infant upon a condition, such acts as an infant can perform, must be done by him, and infancy in such case is no excuse.” It is true, it is said in the same book 399, that, “conditions subsequent, that are to defeat an estate, are not favoured in law; and if the condition becomes impossible by the act of God, the estate shall not be defeated or forfeited.” But the question still recurs, was this a condition the performance of which became impossible by the act of God; we think it was not, as the authorities hereafter to be referred to, will, we think, clearly demonstrate. So in 2 Vernon, 343, after stating that an infant may by his prochein-ami, call his guardian to an account during his minority, and that a stranger who enters and receives the profits of an infant’s estate, shall in the consideration of a court of equity be looked upon as a trustee for the infant, the lord chancellor says, “but the court never pretended to change the nature of an infant’s estate, or to make that absolute, which was defeasible. Where 'an estate is given to an infant upon a condition, such act as an infant can perform, must be done by him, and infancy in such case is no excuse.” According to the principle established by this decision, James Deale was not in default during his minority, by not conveying to Benjamin ; but upon obtaining his age, if Benjamin Franklin was then dead, we think he was bound to comply with the directions of the will of Jacob Franklin, and convey the estate he acquired under the will of Elizabeth Battee, to the heirs of Benjamin, or forfeit the legacy given to him by the will of Jacob. In 3rd Com. Dig. 114, it is said, “If a condition be to enfeoff two before such a day, and one dies, he ought to enfeoff the other; or to enfeoff A, and his heirs, and A dies, he ought to enfeoff the heir; for “and” shall be taken as a disjunctive “o?\” So in 3rd Mod. Rep. 235, it is said, “If a condition be, to make an assurance of land to the obligee and his heirs, and the obligee dies before the assurance made, yet it shall be made to the heir, for this copulative is a disjunctive.” So in 2 Danver’s Abrid. 85, it is said, “If a condition of an obligation be, to make an assurance of certain land to the obligee, and his heirs, and after the obligee dies, yet he ought to make the assurance to his heir for this copulative, and his heirs, shall have the signification of a disjunctive.” We therefore think, that it clearly appears from these authorities, that James Deale was not discharged from the performance of the condition annexed to his legacy by the death of Benjamin Franklin, during his minority; but that on his death, upon his attaining the age of legal capacity to make the conveyance, he was bound to transfer the interest he derived under the will of Elizabeth Battee, to the heirs of Benjamin.

The next question to be considered and decided is, whether by the true construction of the will of Jacob Franklin, this duty was devolved upon him, without a demand from the heirs of Benjamin; or whether he was not in default until such demand was made, and he had refused to comply with such demand ? In giving a judicial construction to the will of a testator, it is well settled that the intention of the testator, is the polar star by which courts of justice are to be governed; and that such intention is always to prevail, where it does not conflict with some established principle of law. What then was the intention of the testator, fairly to be inferred from a careful examination of his will ? It was manifestly his intention, that James Deale should not take the legacy bequeathed to him by his will, and also the land, which might be devised to him, by the will of Elizabeth Bat~ tee ; but that on her death, or as soon thereafter as it conveniently could be done, he should convey to Benjamin Franklin and his heirs, any interest which he might take under the will of Elizabeth Battee. We think it clear from the language of his will, that if he could have ascertained with certainty, when his will was made, that Elizabeth Battee would have devised to James Deale, the estate she gave him by her will, the legacy bequeathed to James Deale would never have been given to him. In case of the occurrence of that event, he appears to have been particularly solicitous, that the legacy given to James, should cease to take effect; unless immediately on her death, or as soon as it could conveniently be done, James should convey to Benjamin and his heirs, the estate devised to him by the will of Elizabeth Battee. It is true he says, that on his refusal to convey the legacy should be forfeited, and, in the language of the will, should descend to Benjamin. But how refuse is the question? Was it to be upon a demand made by the heirs of Benjamin, or was it upon his refusal to convey, according to the directions of his will, on the death of Elizabeth Battee, or as soon as it conveniently could be done ? We think the latter construction is the correct one. He knew that James Deale was an infant, and might remain an infant, at the death of Elizabeth Battee, therefore the conveyance was directed to be made at her death if practicable, or as soon thereafter as it could legally or conveniently be done. The will says nothing about any demand being made by Benjamin Franklin or his heirs ; but only provides, if he refuses to convey, that the legacy is to be forfeited; and it may be asked, does the word refuse, necessarily imply such a demand — we think it does not, but that when he speaks of a refusal to convey, he meant, and only meant his refusal to convey, according to the directions of his will; that is to say, on the death of Elizabeth Battee, or as soon thereafter as it could conveniently be done. According to Johnson and Webster, the word “refuse” may import not only the refusal of a thing demanded, but signifies also, “not to comply,” and according to the true construction of Jacob Franklin’s will, may well mean a non-compliance with the condition to convey, thereby imposed. Upon the whole we think, that no demand was necessary, on the part of Benjamin Franklin’s heirs, and that the bill filed by the personal representative of Benjamin Franklin, claiming the legacy as forfeited, may be sustained without the proof of such a demand. We also think, the fact of Elizabeth Battee having devised only a part of her real estate to James Beale does not exempt him from the obligation of complying with the condition imposed by the will of his grandfather. It was manifestly the intention of the testator, that none of his devisees or legatees should share the bounty of Elizabeth Battee, in the disposition of her real estate, other than his son Benjamin; for he says, if contrary to present expectation, she should devise or otherwise convey her real estate to any other of his legatees or devisees than Benjamin ; such devisee or legatee was to convey all his right, title and interest, so acquired, to Benjamin and his heirs, or forfeit his legacy; so that, no matter what the interest acquired in the real estate of E. Battee might be, the will imposed an imperative duty, to convey all such interest, or incur the forfeiture ; nor do we think that the obligation to make such transfer is annihilated, or in any degree impaired, by that provision in the will of Elizabeth Battee, which directs Benjamin Franklin, to convey to James Beale and his heirs, his undivided moiety in the land devised by Elizabeth to James. The will of Jacob Franklin only making it the duty of James, to convey to Benjamin any real estate, to which he might derive title, from Elizabeth Battee, either by deed or last will and testament; he was only bound to convey any interest he might so acquire in her real estate, and not an interest acquired in the estate of any other person. We do not think, that the will of Jacob Franklin, presents a case of ¿lection ; because at his death, James Beale had no such interest in the real estate of Elizabeth Battee, as the will of Jacob Franklin could operate upon, so as to create the necessity of making an election. It was a bare possibility, uncoupled with any interest whatever.

The qu¿stion next to be considered is, to what amount the complainant’s claim in this case can be sustained. The bill seeks to recover from James Deale, Jr. and his guardian, or one of them, the whole amount of the interest derived by James under the will of his grandfather; not only the sum actually received, but that which was loaned to Warfield, and ultimately lost hy his insolvency, and the irresponsibility ot his endorser, who was discharged by the inability to prove the necessary notice of non-payment by the drawer.

We think, however, that the complainant is entitled to recover only to the extent of the principal sum left him by the will of his grandfather, with interest thereon from the time the forfeiture accrued, by the non-conveyance of his interest in the estate devised to him by the will of Elizabeth Battee.

Decree reversed with costs in both courts, and decreed by this court, that the defendant James Deale, Jr. pay the complainant, the amount received by him of his guardian, with interest from the time he attained his majority.  