
    Lyons, &c. v. Turner and Wife.
    November, 1827.
    Wills — Construction—Period of Distribution. — Testator devised "all the rest and residue of the money arising from the sales of my estate, and debts due to me, to all my dear gi and children who shall attain their ages of twenty-one years, to be invested in Bank Stock by my trustees, for the use of my grand children, or such of them as are now born, or may be born before distribution, and who shall attain that age, &c.. The ^period of distribution above mentioned, means the time when the first legatee shall come of age and have a right to demand his aliquot part: to the exclusion of ail otners, who should be born after that period.
    This was an appeal from the Richmond Chancery Court.
    The controversy arose on a clause in the Will of Peter Lyons, deceased, in these words: “I give all the rest and residue of the money arising from the sales of my ■estate, and debts due to me, to all my dear ■grand children who shall attain their ages of twenty one years, to be invested in Bank Stock by my trustees, for the use or my grand children, or such of them as are now born, or may be born before distribution, and who shall attain that age, and to be paid their respective shares and parts thereof, as they shall attain that age, and not sooner,” &c. The testator appointed four persons trustees for the execution of his Will, of whom only two, to wit: John and James Lyons, acted in the character aforesaid. At the time of his death, the testator left seven grand children, (the issue of his several children,) among whom the female Appellee was one, and had attained her age of twenty-one at the time this suit was brought. All the other grand children were then under twenty-one.
    Under the above clause of the Will, the Appellees claimed the proportion of the estate to which Lucy L. Turner, the female Appellee, was entitled; and the trustees, doubting whether they ought, under a just construction of the Will, to pay the share of Lucy L. Turner,- before the final distribution of the estate among the grandchildren, refused to pay it, without having the sanction of the Court of Chancery. '“'Upon this refusal, the Appellees filed their present bill.
    The Chancellor decreed, that Turner and Wife were entitled to their participation in the residuary fund, on Lucy L. Turner, the female Plaintiff, attaining the age of twenty-one years, she being the first who attained that age. The Defendants appealed.
    Stanard and Nicholas, for the Appellants.
    Attorney General and Leigh, for the Appellees.
    Bor the Appellants, it was said, that all grand children born before the final distribution, are entitled to shares of the estate, under the testator’s Will. The authorities were divided into three classes.
    1. Where there is a devisee to a certain class of persons, as to the children of A, no child is included but those born at the death of the testator. Viner v. Brands, 2 Bro. Ch. Cas. 658; Singleton v Gilbert, 1 Cox. 68; Davidson v. Dallas, 14.Ves. 576; Hill v. Chapman, 1 Ves. 405.
    2. The second class is, where there is a life-estate given to one, and after his decease, to the children or grand children of A., all children born before the death of tenant for" life, are entitled, although they may be born after the death of the testator. This class is illustrated by the cases of Baldwin v. Carver, Cowp. 209; Aynton v. Aynton, 1 Cox, 327; Attorney General v. Crispin, 1 Bro. Ch. Cas. 537; Middleton v. Messenger, 5 Ves. 136; 15 Ves. 152.
    3. The third class is, where there is a bequest to children generally, payable at a certain period, or on a certain event, all take who come in esse before the period appointed occurs, or event happens, Ellison v. Airey, 1 Ves. senr. Ill; Congreve v. Congreve, 1 Bro. Ch. Cas. 530; Gilmore v. Severn, Ibid. 582; Andrews v. Partington, 3 Bro. Ch. Cas. 401 ; Pulsford v. Hunter, Ibid. 416; *Prescott v. Long. 2 Ves. junr. 690: Hughes v. Hughes, 14 Ves. 256; Hoste v. Pratt, 3 Ves. 730; Whitebread v. Lord Saint, 10 Ves. 152; Gilbert v. Boor-man, 11 Ves. 238.
    Bor the Appellees, it was contended, that in all cases where a gross fund is to be distributed among a class of persons, all persons born after the period appointed, are excluded. All the cases cited by the Appellant’s Counsel support this doctrine; and in the case of Singleton v. Gilbert, 1 Cox, 68, where there was a postponement of the time of taking, the Court adhered to the old rule. The only question is, what is the period appointed? Or, in other words, does the word “distribution” mean final distribution, or when the first legatee -arrives at twenty-one? The language of the Will, and all the circumstances of the case, indicate the latter construction. Heth v. Heth, 2 Atk. 122, note; Walker v. Shore, 15 Ves. 123; Campbell v. Prescott, 15 Ves. 500; Barrington v. Tristram, 6 Ves. 245; Godfrey v. Davis, Ibid. 43; Hoath v. Hoath, 2 Bro. Ch. Cas. 3; Paul v. Compton, 8 Ves. 380; Booth v. Booth, 4 Ves. 399; Walcott v. Hall, 2 Bro. Ch. Cas. 305.
    
      
       See monographic note on “Wills” appended to Hughes v. Hughes, 2 Munf. 209.
    
   November 9.

JUDGE COALTER

delivered his opinion, in which the other Judges concurred.

Without a particular examination of the authorities, none of which perhaps are •entirely opposite to this case, I will submit my ideas as to the intention of the testator as disclosed by the Will itself.

He intended a present benefit, at the discretion of his Executors, to all his grand children who were or should be born before distribution, by an application of the interest of the fund to their support and education ; and he intended a future interest in each one of them, who should ^attain twenty-one years of age; not merely to vest at that time, to be enjoj'ed at some remote and uncertain period, but to be then received and enjoyed. Had the bequest been simply to his grand children, who should attain twenty-one years of age, to be paid their respective shares as they shall attain that age, then I incline to think, that the grand children in being at the time of his death would alone form the class who were to take. If, at tha-t time, they were all of age, although evidently from the terms of the Will no distribution could have been instantly made, yet the right to have the whole distributed, so soon as that could be done, would then have attached to each one, who would have had a vested right in his aliquot part, transmissible; which rights could not be affected by the birth of grand children afterwards. If, at that time, one- was of age and the rest not, a right transmissible would have vested in that one, not only to an aliquot share, counting the others then in being, and he would have had a right transmissible, to such augmentation of the share as might thereafter accrue, on the death of any of the others before twenty-one. If, before a reasonable time to ask distribution, or pending a suit therefore, one or more of the class should die -under twenty-one, this augmentation of what would otherwise have been the share, would also be demandable. If, however, one aliquot part had been paid or decreed, counting all, none having died, and then another came of age, one or more of the original class having died since such payment or decree, then this second one, coming of age, would be entitled to an aug-mentated share; and the first one who came of age, or his representative, would also receive the augmentation so accruing, so as to make him equal with the second, an equality amongst the objects of his bounty being intended; and so on, from time to time, would the fund be distributed, as and when the individuals of the class severally attained their age of twenty-one.

*The testator, however, intended to include certain grand children, though not in being at the time ox his death, and to exclude others, who might come into being after a certain event, to wit: after distribution. He knew the fact, that none were then of age, and that they might not be, at the time of his death; and therefore, that some time would probably elapse, before any distribution, either partial or final, would take place, or be called for. He therefore extends his bounty, as well to such of them as are now born, as to such'as may be born before distribution, who shall attain the age of twenty-one years. It is this provision which raises the question before us.

On the part of the Appellant, it is contended, that the words, “or may be born before distribution,” mean to extend the bounty to all such as are born at any time before a final distribution can be claimed. I say “can be claimed;” for, I do not understand, that if, after the last one who has come into being has arrived to the age of twenty-one, and being refused his share, has sued for it, another should be born pendente lite or before suit, but after the age of the claimant, that after-born child shall have a claim to share with that claimant, although distribution was not actually made. In such event, I understand it to be conceded, that the right to have the share, there being no other person in being entitled to claim, is a vested right to the whole remaining share, not to be affected by such posterior events. If this is not conceded, I think it must nevertheless be Law.

On the part of the Appellees, it is contended, that the meaning of those words is, to exclude all who should be born after the first one came of age, and had, eo in-stanti, received an aliquot part or distributable share, counting those then in being and under age; or, having a right, was demanding it; the right to distribution, and the actual receipt of it, whether then or afterwards, being, according to the idea expressed, one and the same thing.

*According to the pretensions of the Appellant, it is urged, that when one of six in being shall attain twenty-one, that one has a vested right to one-sixth of the fund, which ought to be paid, but with this salvo; that, if final equality was intended, and inasmuch as final distribution cannot be made for a long time, some objects being of tender years, and as, before such distribution, many more may be born, the first, and every other object attaining age, must be held ultimately to a re-partition from time to time, either as the aliquot share shall increase or be diminished by after deaths or births. Thus; when the next one coining of age, claims partition, six more have been born; so that one-twelfth is a share, and the next must refund. When the next comes of age and claims, these six or any others, say to the number of six, are dead, then he is entitled to a sixth part, and the other two shares are augmented. When the next comes in, more are born, and then the shares are diminished, &c. &c. In the mean time, bonds are to be taken from those receiving, to refund, &c. Or, as the one first coming of age has a vested right to a share, computing the objects then in being, the executor is barred to pay him his share, and has no right to demand bond, except to refund in cases of debts, (and which he demanded in this case) and this shall be final as to him, whatever augmentation or diminution of shares may thereafter take place by deaths or birth; and should all die the next day, it would follow, I presume, that he will take no more, but that as to the five remaining shares, there shall be an intestacy.

Is a construction of the testator’s Will, involving either of these consequences, a reasonable one?

He gives the fund to all his dear grand children, &c. to be paid their respective shares and parts. What shares and parts? Such as may eventually turn out to be grossly unequal? Or, share and share alike? It seems to me, that there must be other expressions or provisions in the Will, showing that inequality was intended, before we can give *a construction producing that effect. None such, however, are perceived; and I also think, when he gives the rest and residue of his estate to his grand-children, who shall attain twenty-one, if any one shall attain that age, there must be very cogent reasons, apparent from other, parts and provisions in the Will, which shall indue a construction involving an intestacy as to any part, before we can so decide. But, I see nothing of this kind. Suppose the party, contingently entitled to the last share, according to the construction contended for by the Appellant, dies before twenty-one. Shall there be an immediate intestacy as to that, or shall it remain in abeyance, or until all the children of the testator die, so that it may be certain that no grand child can be born to take it? And on that event what will become of it? Will it be an undisposed of subject, although there are grand children in being, who have arrived at the age of twenty-one years, and who were in being at the death of the testator? A construction involving inequality an intestacy both, it seems to me, cannot be put on this Will.

But, can the other mode of distribution claimed by the Appellant, be supported as intended by the testator? This construction will so nearly amount, in ninety-nine cases out of one hundred, and probably in this very case, to a bequest to all the grand children whenever born, who shall attain twenty-one years of age, as to make the words “before distribution,” of little or no avail: insomuch, that if he had suspected such a construction as is contended for, he probably would have gone the full length of providing for all.

The testator-made his Will, shortly before his death in April, 1809. It is recorded in September of that year. He had then, say seven grand children, born and alive, all under age. ■ The eldest comes of age, and files her bill in 1812. John Hopkins, the next eldest, comes of age after 1815; for, in that year, he defends by his guardian. Ann Eliza Lyons,' the next, files her petition as an adult, in *1821. All the rest seem yet to be under age; and two grand children, then lately born, are made parties in 1815. The testator might very reasonably have supposed, that before the youngest grand child, in being at his death, would attain, twenty-one years of age, every grand child would be born, which, in the ordinary course of nature, he could calculate on being born ; and if he intended by those words, that every distributable share should be liable to be opened, in order to contribute in the way contended for, until the youngest came of age, he would hardly have thought it worth his while to stop it there, but would have provided for all his'grand children whenever born ; as the difficulty of distribution would have been very little,if any, increased thereby. But, he intended to put some termination or limitation to the coming in, being of the class provided for; and that, I think, ought to be a reasonable and convenient termination, unless there are very clear expressions to the contrary.' The time of the first one coming of age, at which time her right to a share accrued, and which ex vi termini, means the time-of the distribution of that share, seems tome to be the most reasonable and convenient termination. Making a division and paying one share, is certainly a distribution, in one sense of the word; a partial distribution. When the last share is paid over, then there is a final distribution. Which of these is meant by the words, “born- before distribution?” Did the testator intend, by the words, 1 ‘to be paid their respective shares and parts, as they shall attain that age,” that when one came of age she was to receive a part, which, by after-events, might be greatly diminished, and she obliged to refund accordingly, and to give security to do so? That her interest was .vested, subject to be divested? Or, did he intend her to receive a part, which, the executor could well ascertain and would-be justified in paying, so as to enjoy it from that time, without account, and with the privilege of coming in for a farther-share, from time to time, as the claim might *be augmented by death? The absolute payment that seems to me to be directed to be made them, “as they shall attain that age,” is inconsistent with that conditional payment insisted upon, as resulting from the other construction. The settled and uniform construction put on Wills, if not precisely like this, yet very nearly so, goes, I think, strongly to fortify mein this construction of the present Will.

On the whole, I think the Decree is. right.

Decree affirmed. 
      
       Absent, Judges Gkeen and Cábele, the latter of whom did not sit on account of his connexion with some of the parties.
     