A testator having five pieces of property, to-wit, insurance
stock, a vacant city lot, a farm, corporation stock, and a city
house, and little or no other, and having four children, to-wit,
three sons, two (A. and B.) married and having children, and one
(C.) unmarried, and one daughter (D.) aged thirty, then married and
having a child (E.) aged three years, made his last will.
He left the interest on the insurance stock and the vacant lot
to his married son A.; "and at his death" "the aforementioned stock
and the said vacant lot he equally divided between his (A.'s)
children, their heirs and assigns, forever."
He left the interest on the corporation stock to his son B. "for
and during his life," and at his death the said stock to be equally
divided between his (B.'s) children.
He left the usufruct of the farm to his unmarried son C., "for
and during his life," "and should he marry and have legal issue,"
the said farm to be equally divided amongst his children, when they
shall have arrived at the age of twenty-one years. The will
continued: "Should my said son die without lawful issue, it is my
will that the said farm be equally divided between my other
children," share and share alike, to them, their heirs and assigns,
forever.
To his daughter he left the rent of his city house for and
during her life, and directed that at her death the same should be
sold and
"the avails thereof become the property of her children or
child, when she or they have arrived at the age of twenty-one
years, the interest in the meantime to be applied to their
maintenance."
After the testator's death, D., the daughter, had another child,
who died in infancy. The first child, E., lived till he was
twenty-eight years old, and then died, his mother still living,
aged fifty-six, and the house not yet having been sold.
On a bill filed by D., after the death of both her children and
of her husband, to settle the title to the city house, as between
herself and her brothers, the other children of the testator,
held, both on the apparent intent of this particular will,
as seen on reading the dispositions in the different clauses to all
the children, to give a full estate where the child
Page 86 U. S. 168
of the testator had a child or children, and on the technical
rules about vested and contingent remainders applicable to the
clause relating to that share given to the daughter, that the
grandson, E., took a vested remainder in the city house at the
death of his grandfather, the testator, but subject to open and let
in after-born children, and to take effect in enjoyment at his
mother's death, that (the statute of Maryland making him sole
representative of his infant sister) the right of this infant
sister passed on her death to him, and (the same statute making a
widowed mother the representative to her only child) that on his,
E.'s, death, all his right passed to his mother, and accordingly
that she, the daughter of the testator, was invested with all his
right to the city house, and that she could have the property now
sold, and that if it should be sold at her death the avails would
go to her representative, and that she might either dispose of them
in advance, by will, or leave them to be disposed of by the
statute.
William Cooper, of Maryland, died in 1845, leaving a widow
(Sarah), three sons, William, Joseph, and John, and one daughter,
Elizabeth. Two of the sons, William and Joseph, were married and
had children; John was unmarried. Elizabeth, then thirty years old,
was married to Richard Cropley and had one son, William Cooper
Cropley.
The testator's property consisted of a farm in Maryland, on
which he resided; a house on Pennsylvania Avenue, in the City of
Washington; a vacant lot there, on Capitol Hill; stock in the
Potomac Insurance Company, and stock in the corporation of
Alexandria.
His will ran as follows:
"I will and bequeath to my dear wife, Sarah Cooper, all my
stocks which I own in corporate institutions during her life; also
the rents arising from my house in the City of Washington. I also
devise and bequeath to my said wife the usufruct of the farm on
which I now reside, for and during her life, with the option of
selling to same by her, . . . in which case my will is that the
proceeds shall be invested in stocks of some sound and corporate
institutions, the interest from the same to be enjoyed by my said
wife for and during her life, and at her death the said farm, or
its avails if previously sold, as above permitted, to be
appropriated as hereinafter directed. "
Page 86 U. S. 169
"I will and devise to my son William, after his mother's death,
the interest on $1,250 stock now held by me in the Potomac
Insurance Company, Georgetown. I also will and bequeath to may said
son, William Cooper, a vacant lot on Capitol Hill Washington, and
at his death it is my will that the said vacant lot and
aforementioned stock be equally divided between his children, their
heirs and assigns forever."
"To my son John I give and bequeath, at his mother's death, the
usufruct of the aforementioned farm, or the interest of its avails,
if previously sold, for and during his life, and should be marry
and have legal issue, it is my will that the said farm, or, if
previously sold, the avails thereof, together with any interest
that may be due thereon at his decease, shall be equally divided
amongst his children when they shall have arrived at the age of
twenty-one years, the interest is the meantime to be applied to
their maintenance.
Should my said son John die without lawful
issue, it is my will that the said farm, or its avails in case of
its being sold, be equally divided between my other children,
share and share alike to them, their heirs and assigns
forever."
"To my son Joseph, at his mother's death, I give and bequeath,
for and during his life, interest on $1,500 in the Alexandria
Corporation stock, held by me, and at his death the said stock to
be equally divided between his children."
"To my daughter, Elizabeth Cropley, at her mother's death, I
give and bequeath the rent of my house on Pennsylvania Avenue, in
the City of Washington, situated on square _____,
for and
during her life; and at her death it is my will that the said _____
be sold, and the avails thereof become the property of her children
or child, when he, she, or they have arrived at the age of
twenty-one years, the interest in the meantime to be applied to
their maintenance."
Shortly after the death of the testator, Mrs. Cropley had
another child, a daughter, who died in infancy.
William Cooper Cropley, the child living at the death of the
testator, died in December, 1870, at the age of twenty-eight,
without issue, leaving his mother his sole heir-at-law and personal
representative.
The widow of the testator died in February, 1854. Richard
Cropley, the husband of Elizabeth, died in 1851.
Page 86 U. S. 170
After William Cooper Cropley's death, his mother, then fifty-six
years of age, asserted ownership in the house on Pennsylvania
Avenue, mentioned in the will, and by the last but two of the
above-quoted clauses of the will devised to her for life, and at
her death over to her child or children. Her view was that her
deceased son, William Cooper Cropley, took a vested interest in the
bequest in question at the death of his grandfather, the testator,
but subject to open and let in after-born children, and to take
effect in enjoyment at the death of his mother; that his sister, at
her birth, took a like vested interest to the extent of a moiety;
that at the sister's death her right passed to him as distributee
(the statute of distributions of Maryland thus providing); that at
his death all his right passed to her, his mother, the complainant,
as a like distributee under the same statute.
The other children of the testator, William, John, and Joseph,
claimed the property, as heirs-at-law, on the ground that the
devise over to the child or children had lapsed.
This claim of the heirs-at-law casting a cloud on the title,
Mrs. Cropley filed a bill in the court below against said William,
John, and Joseph, to obtain a construction of the will.
The bill represented that the complainant wished to sell the
property, but could not, owing to the cloud on the title made by
the claim of the sons, and it prayed that a decree might be passed
divesting the defendants of any title in or to the property, and
vesting the same in the complainant, giving the true construction
and interpretation of said last will and testament.
That the court would grant such other and further relief as to
the court may seem meet and the interests of the complainant might
require.
The court below decreed that the devise over to the child or
children of Mrs. Cropley was contingent upon the child's or
children's surviving the mother and also attaining twenty one, and
hence that the devise over did not vest at the death of the
testator, nor even upon William Cooper Cropley attaining
Page 86 U. S. 171
twenty-one, he having died in the lifetime of the mother. It
accordingly dismissed the bill.
From this decree Mrs. Cropley took this appeal.
MR. JUSTICE SWAYNE delivered the opinion of the Court.
This case turns upon the following clause of the will of William
Cooper, deceased:
"To my daughter, Elizabeth Cropley, at her mother's death, I
give and bequeath the rent of my house on Pennsylvania Avenue, in
the City of Washington, situated on square _____, for and during
her life; and at her decease it is my will that the said _____ be
sold, and the avails therefrom become the property of her children
or child, when he, she, or they have arrived at the age of
twenty-one years, the interest in the meantime to be applied to
their maintenance."
The testator died in 1845. He left at his decease a widow, Sarah
Cooper, and four children, William, John, Joseph, and Elizabeth,
the complainant. William and Joseph were married and had children.
John was unmarried. Elizabeth was intermarried with Richard
Cropley, and had living one child, William Cooper Cropley, then
about three years old. Shortly after the testator's death,
Elizabeth gave birth to a daughter, who died in early infancy.
Richard Cropley, the husband of Elizabeth, died in 1851. Her mother
died in 1854. Her son, William Cooper Cropley, died in 1870, at the
age of twenty-eight years, not having married. After his death,
Elizabeth Cropley, the complainant, then fifty-six years of age,
claimed to own the house on Pennsylvania Avenue devised to her for
life. Her brothers, William, John, and Joseph, set up claims as
heirs-at-law of their father, alleging that the bequest to the
children of Elizabeth had failed by reason of the death of both of
them before the death of their mother, and of the younger one
before reaching
Page 86 U. S. 172
the age of twenty-one years. The complainant thereupon filed
this bill to obtain a construction of the will, and to ascertain
her rights.
The question presented for our determination is, whether the
bequest to her children lapsed, as is insisted by the appellees;
or, in other words, whether it was vested or contingent.
It is an axiom in the law of wills that the intention of the
testator shall prevail. Upon looking at this will as regards the
four children of the testator, we find that the provision made for
each is clear and explicit. He gave to William, after his mother's
death, the income from $1,250 of the stock of the Potomac Insurance
Company, and a vacant lot on Capitol Hill. At his death, directed
"that the said vacant lot and the aforementioned stock be equally
divided between his children, their heirs and assigns forever." To
John, at his mother's death, was given the use of a farm; or, if
sold by his mother, the interest accruing from the proceeds, for
life. If he should marry and have lawful issue, at his death, the
farm or its avails was to be equally divided among his children
when they should arrive at the age of twenty-one, "the interest in
the meantime to be applied to their maintenance." This clause
concludes as follows:
"Should my son John die without issue, it is my will that the
said farm or its avails, in case of its being sold, be equally
divided among my other children, share and share alike, to them,
their heirs and assigns forever."
To Joseph, at his mother's death, was given the interest of
$1,500 of Alexandria Corporation stock, and at his death it was "to
be equally divided between his children." Then follows the
provision for Elizabeth and her children.
The property given to the sons who had children, is given to
them for life, and at their death of their children in equal
shares. There is no provision beyond this. The gift is absolute.
The children of John, if he should have any, were not to receive
their shares until they should arrive at the age of twenty-one. But
the interest, in the meantime, was
Page 86 U. S. 173
to be applied to their support. It was only in the event of his
dying without issue that the further provision was to take effect.
The entire failure of issue at his death and not the failure of
such issue to reach the age named was the condition of the gift
over to his brothers and sister.
So as respects the complainant, who, like her brothers William
and Joseph, had issue living at the death of the testator. The gift
is to her and her child or children, and there is no devise or
bequest over in any contingency that might occur. The mother and
children were the objects of the testator's solicitude and bounty.
He looked no further into the future. William, Joseph, and
Elizabeth, and their children were thus placed upon a footing of
equality. If John should have lawful issue living at his death,
such issue would be in the same category with the children of
William, Joseph, and Elizabeth. It seems clear to us that the
testator intended that what was given to each of his children
should vest interest in them and in their children as early as
possible, the period of enjoyment to be deferred in each case as
was specially provided, and that the result should be the same in
John's case if issue should thereafter be born to him and survive
him. Beyond his grandchildren, including the children of John, if
any should be living at his death, the testator left it to the
local law of descent and distribution to meet any emergency that
might arise.
It was only in the single event of John dying without issue,
that it was declared by the testator that the property thus given
to one of his children should go over to the others.
If we pursue the subject before us by the light of the rules of
law which apply, we shall reach the same conclusion. An analysis of
the clause in question eliminates these particulars:
Laying out of view the estate of her mother, a life estate is
given to Elizabeth Cropley.
At the death, whenever that might occur, and whatever then the
age of her offspring, the property was to be sold
Page 86 U. S. 174
and converted into money. Her death and the sale might have
occurred immediately after the death of the testator.
Upon the sale being made, her offspring, if minors, would have
become entitled to the interest of the fund until the age of
twenty-one years was reached. The right to receive the whole or an
aliquot part of the fund would then have accrued.
The time of selling had no relation to the age of the
legatees.
It depended wholly on the death of the tenant of the life
estate.
The effect of her dying during their infancy would have been
that they would have taken the interest instead of the principal of
the fund up to the age of twenty-one, and then the principal
instead of the interest.
The real estate having been directed by the will to be converted
into money, it is to be regarded for all the purposes of this case
as if it were money at the time of the death of the testator. That
it was not to be sold until after the termination of two successive
life estates does not affect the application of the principle.
Equity regards substance and not form, and considers that as done
which is required to be done. The sale being directed absolutely,
the time is immaterial. [
Footnote
1]
Where a bequest is given by a direction to pay when the legatee
attains to a certain age, and the interest of the fund is given to
him in the meantime, this shows that a present gift was intended,
and the legacy vests in interest at the death of the testator.
[
Footnote 2]
A bequest in the form of a direction to pay at a future period
vests in interest immediately if the payment be postponed
Page 86 U. S. 175
for the convenience of the estate or to let in some other
interest. The payment of debts is an instance of the former, and a
prior temporary provision for some other person, as for Elizabeth
Cropley in this case, is an instance of the latter. In all such
cases, it is presumed that the testator postponed the time of
enjoyment by the ultimate legatee for the purpose of the prior
devise or bequest. [
Footnote
3]
A devise of lands to be sold after the termination of a life
estate given by the will, the proceeds to be distributed thereafter
to certain persons, is a bequest to those persons and vests at the
death of the testator. [
Footnote
4]
It is a consideration of weight that if William Cooper Cropley,
who died at the age of twenty-eight, had married and left children,
according to the proposition of the appellees, they could have
taken no benefit from the provision made for their father. Such
could not have been the intention of the testator. In real property
cases, where the question arises whether a remainder is vested or
contingent, this consequence is held to be conclusive -- that it
was the former. [
Footnote 5] In
Goodtitle v. Whitby, [
Footnote 6] Lord Mansfield said:
"Here, upon the reason of the thing, the infant is the object of
the testator's bounty, and the testator does not mean to deprive
him of it in any event. Now suppose this object of the testator's
bounty marries and dies before his age of twenty-one leaving
children, could the testator intend, in such event, to disinherit
him? Certainly he could not."
In
Doe v. Perryn, [
Footnote 7] Buller, J., said:
"But if this were held not to
Page 86 U. S. 176
vest till the death of the parents, this inconvenience would
follow; that it would not go to grandchildren, for if a child were
born, who died in the lifetime of his parents, leaving issue, such
grandchild could not take, which could not be supposed to be the
intention of the devisor."
This reasoning applies to the present case.
Boraston's Case [
Footnote 8] was referred to by counsel on both sides. The
point there ruled was as follows: if real estate be devised to A.
when he shall attain a given age, and until A. attains that age the
property is devised to B., A. takes an immediate vested estate, not
defeasible on his death under that age; the gift being read as a
devise to B. for a term of years, with remainder to A. The same
doctrine has since been affirmed in numerous other cases, and is
now a canon of the English law. [
Footnote 9]
Boraston's Case related to real
property. If this were such a case it would be in point and
conclusive. It has been applied by American courts to bequests of
personalty. [
Footnote 10]
The subject of vested and contingent remainders was examined by
this Court in
Poor v. Considine. [
Footnote 11]
Chancellor Kent says: [
Footnote 12]
"It is the uncertainty of the right of enjoyment and not the
uncertainty of its actual enjoyment which renders a remainder
contingent. The present capacity of taking effect in possession, if
the possession become vacant, distinguishes a vested from a
contingent remainder, and not the certainty that the possession
will ever become vacant while the remainder continues."
"When a remainder is limited to a person in esse and ascertained
to take effect by words of express limitation on the determination
of the preceding particular estate, this remainder is most clearly
and unquestionably vested. [
Footnote 13]"
Bequests involving the question before us may be resolved into
two classes:
(1) Those where the time or event referred to in the
Page 86 U. S. 177
future is of the substance and a condition of the gift, and,
hence, marks the time of vesting in interest.
(2) Those where the vesting in interest has already occurred,
and such event or time only designates the period of the
commencement of the enjoyment.
We think this case belongs to the second category.
We hold that William Cooper Cropley took a vested interest in
the bequest in question at the death of the testator, but subject
to open and let in after-born children, and to take effect in
enjoyment at the death of his mother; that his sister, at her
birth, took a like vested interest to the extent of a moiety; that
at her death her right passed to him as distributee, according to
the Statute of Distribution of Maryland; that at his death all his
right passed to his mother, the complainant, as a like distributee
under the same statute. If the property shall be sold at her death
all the avails will go to her legal representative. She may dispose
of them in advance by will, or leave them to be distributed
according to the statute.
At the age of twenty-one William Cooper Cropley might have
elected to take the property instead of its proceeds. In that
event, no sale could have taken place. The complainant is now the
only party in interest. Under the circumstances, we think the
complainant may exercise the right of election as her son, if
living, could have done, and that, under the general prayer for
relief in the bill, she may accomplish that object in this case, if
she shall desire to do so. [
Footnote 14]
Decree reversed and the cause remanded with directions to
enter a decree in conformity to this opinion.
[
Footnote 1]
Craig v.
Leslie, 3 Wheat. 563;
Peter
v. Beverly, 10 Pet. 563;
Taylor
v. Benham, 5 How. 269;
Fairly v. Kline,
Pennington 554;
Reading v. Blackwell, Baldwin 166;
Hocker v. Gentry, 3 Metcalfe 473.
[
Footnote 2]
Re Hart's Trusts, 3 De Gex & Jones 202;
Hanson
v. Graham 6 Vesey 239;
Hammond v. Maule, 1 Collyer
281;
Burrill v. Sheil, 2 Barbour 471;
Bayard v.
Atkins, 10 Pa.St. 20;
Provenchere's Appeal, 67
id. 466;
Hanson v. Brawner, 2 Md. 102;
Nixon
v. Robbins, 24 Ala. 669.
[
Footnote 3]
Hallifax v. Wilson, 16 Vesey 171;
Leeming v.
Sherratt, 2 Hare 14;
Packham v. Gregory, 4
id. 396;
Winslow v. Goodwin, 7 Metcalf 363;
White v. Curtis, 12 Gray 54;
Tucker v. Ball, 1
Barbour 94;
Barker v. Woods, 1 Sandford's Chancery 129;
Thomas v. Anderson, 6 C.E.Green 22;
McGill's
Appeal, 61 Pa.St. 47;
Tayloe v. Mosher, 29 Maryland
443;
Brent v. Washington, 18 Grattan 526;
Fuller v.
Fuller, 5 Jones' Equity 223;
Roberts v. Brinker, 4
Dana 573;
Rawlings v. Landes, 2 Bush 159.
[
Footnote 4]
Fairly v. Kline, Pennington 554;
Reading v.
Blackwell, 1 Baldwin 166;
Rinehart v. Harrison's
Executors, ib., 177;
Loftis v. Glass, 15 Arkansas
680.
[
Footnote 5]
Carver v.
Jackson, 4 Pet. 1.
[
Footnote 6]
1 Burrow 234.
[
Footnote 7]
3 Term 495.
[
Footnote 8]
3 Reports 21.
[
Footnote 9]
Hawkins on Wills 237.
[
Footnote 10]
Roberts v. Brinker, 4 Dana 573;
Watkins v.
Quarles, 23 Ark. 179;
Collier's Will, 40 Mo. 287.
[
Footnote 11]
73 U. S. 6
Wall. 476.
[
Footnote 12]
4 Commentaries 203.
[
Footnote 13]
1 Preston on Estates 70.
[
Footnote 14]
Craig v.
Leslie, 3 Wheat. 563;
Fletcher v.
Ashburner, 1 Leading Cases in Equity 794, 805, notes.
