Hemphill v. Hurford

The opinion of the Court was delivered by Kennedy, J.

The question raised here was decided by this court in the case of Hamersley v. Smith, ( 4 Whart. 126 ). There the testator directed by his will, that the moneys which might be received by his executors from W. F.’s estate, towards the payment of a debt of f10,000, owing to him, should be invested by his executors in trust for the sole use and benefit of his granddaughter, M. F.; but if she should die before him, then he directed that the same should be paid to her daughter. M. F. survived the testator, as also her husband, and married a second time. Held, that the trust for her separate úse ceased on her discoverture, and was not revived by her second marriage; and, therefore, that the trustees under an assignment made by her and her second husband, were entitled to recover the fund from the trustee appointed under the will. In the case under consideration, the legatee was at all times sui juris; and it does not appear, from anything contained in the will, that it was the intention of the testator to restrain the legatee from disposing of the legacy as he pleased. The mere circumstance of his giving it, in the first instance, to his executors, as trustees, does not indicate any such intention, and it is not pretended that there is anything else which does; for he expressly directs, that the legacy shall be paid by his executors to the legatee himself, at the end of three years from the decease of the testator, at farthest, or sooner, if in the opinion of the executors it can be done without injury to his estate generally, and the interests of those to whom he had given the residue of it. So that the payment of the legacy to the legatee himself, is not postponed on account of any personal objection to his receiving it, but because the testator thought it could not be done, perhaps, without injuring the value of his estate and the interests of those entitled to the residue. It is, therefore, clear, that the testator intended to give the legacy absolutely to his nephew, Robert Coleman Hemphill, without placing it under the control of any other than the legatee himself. The legatee, therefore, had a right to assign it to whom he pleased; and having .done so, his assignee is entitled to recover. Judgment is accordingly rendered for the plaintiff.

Judgment for the plaintiff.