Hopkins v. Jones

Sergeant, J.

— There is no contingency here that affects the transmissibilify. There is a contingency, which affects the right of Rebecca J. Rutter ever to take, but none that affects the vesting of her right or possibility, so as to pass to her representatives on her death, before the contingency happens. The rule on this subject is recognised by this court in Kelso v. Dicky, 7 Watts & Serg. 279 , which in effect decides the present case, that is to say, in case of contingent executory bequests, the interests of the first and subsequent takers, quodum modo vests eo instanti; so that if the substituted legatee die before the contingency happens, upon which he is to succeed to the legacy, his representative will, notwithstanding, be entitled to it so soon as the event shall take place. Suppose, then, a bequest be made to A., but if A. died under twenty-one, or wdthout leaving children or issue, to B.; although B. happened to die before A., B.’s personal representative would be entitled to receive the legacy upon the happening of the contingency, on the ground of its being a vested right in B. previously to his *71 decease. 1 Roper on Leg. 401. The present seems to be in effect the case put. The words “ die without lawful issue,” are to be construed, in case of personal estate, to mean “ die without leaving lawful issue,” when that corresponds with the testator’s intent. Pinbury v. Elkin, 1 P. Wins. 563. In that case, the corpus was left to the legatee for life. If that be so, such intention is more apparent where,-as here, the interest only is given to the legatee for life.

Judgment reversed, and judgment for plaintiff.