Larocque v. Clark

The Surrogate. — I. As to the first point raised by the executor, I believe it to be the general rule of law, that a legacy, payable in the future, and consisting of personal property, or charged upon personal estate, vests from the death of the testator. The law was otherwise as to legacies charged upon the realty, and the chancellor showed the distinction between them, in his remarks in Birdsall v. Hewlett ( 1 Paige, 32 ). He said, “ Legacies charged upon the real estate and payable at a future day, are not vested, and become lapsed, if the legatee dies before the time of payment arrives. This rule was at first adopted without any exceptions, and in direct opposition to that which existed in regard to legacies payable out of the personal estate.” And Williams lays down the rule with precision (2 Will, on Ex., 776), as follows: “ Where a person bequeaths a sum of money, or other personal estate, to one for life, and after his decease to another, the interest of the second legatee is vested,- and his personal representatives will be entitled to the property, though he die in the lifetime of the person to whom the property is bequeathed for life.” (And see Barker v. Woods, 1 Sandf. Ch., 131.)

H. Nor is this a case where “ the whole gift is contained in a direction to executors to pay or divide on a certain event.” Time, in this case, was annexed only to the gift, and not to the substance of the gift; and is not connected with any event to happen to the donee. (Van Wyck v. Bloodgood, 1 Bradf., 154 .) The mere postponement of the actual possession of the legacy affixed no condition to the immediate vesting of the interest.

HI. As to the question whether the legacy once vested could be divested by the death of the legatee, I am referred by the executor’s counsel to the dictum of Chancellor Walworth, in Nodine v. Greenfield ( 7 Paige, 544 ). But that was a real estate case — a devise of a remainder in fee to such children (nephews of testator) as should be living at the time of the decease of his widow, their aunt, and it was of course *472 held that they took subject to be divested by their death during the aunt’s life estate, and subject to open and let in children born during the life estate. The cases of Baker v. Lorillard (4 N. Y. [4 Comst.] 257), and Wilson v. Wilson ( 32 Barb., 328 ), are of the same nature.

IV. It is my judgment that the legacy to Warren, under the will, vested from the death of the testator, and that it now belongs to his representatives. A decree will be- entered as prayed for.