Van Syckel v. Van Syckel.

and after the death of E. to her husband for his life, with remainder to all and every the children of E. by her present or any future husband. After the testator's death, E.'s husband died and she married again. E. died, leaving her second husband surviving. On a bill filed by him against the trustees of the will-held, that the benefit of the gift was confined to the husband living at the date of the will and the death of the testator, and did not extend to the second husband. Franks v. Brooker, 29 L. J., Ch. 292, 27 Beav. 635.

Counsel for petitioner seeks to take this case out of the rule thus laid down, on the authority of the case of Swallow v. Swallow's Administrator, 12 C. E. Gr. 278, and In re Lynne, L. R., 8 Eq. 65. In the first case the question arose as to the construction of the provision of a will, by which the testator ordered and directed that if either of his sons should die without leaving lawful issue, the widow of the decedent should receive one-third of the rents of the real estate devised to him by the will, so long as she should remain his widow. E., one of the testator's sons, died after the testator's death, leaving no lawful issue, but leaving a widow, the complainant. She, however, was not the wife of E. at the time of the making of the will or at testator's death. At both of these dates, E.'s first wife was living. The defendant insisted that the complainant was not entitled to the provision made for E.'s widow, but the chancellor (at p. 280) says: "I am of opinion that she is." Then, quoting the provision of the will above set out, says: "He evidently intended to provide, by the devise in question, that the decedent's widow should have an equivalent to her dower, notwithstanding the limitation over. It cannot, of course, be ascertained until the death should have occurred, who would answer the description-who would be the widow. The provision is not declared to be in favor of any person living at the date of the will; nor is the language employed to be so construed. The gift is not to the wife of the decedent, but to his widow, the person who should be his wife at the time of his death, and in terms distinguishes the case, on that account, from those above cited.

The case of In re Lynne would seem to favor the contention

Garland v. Smiley.

of counsel, but, subsequently, in Firth v. Fielder, 22 W. R. 622, in which the question arose on a devise to trustees to pay the rents to F. for life, and after his death, leaving his wife surviving, to pay the rents to such wife; the first wife of F., who was married at the date of the will, died after the testator's death, and F. married a second wife, who survived him.

Re Lynne's Trusts was relied on by counsel, but Jessel, M. R., following Boreham v. Bignall, supra, held that the gift of the rents was confined to the wife who was living at the date of the will, and refused to follow the case of Re Lynne's Trusts.

I am of opinion that, under the authorities, the petitioner took nothing under the will, and is not entitled to the relief asked, and, further, that she is not in a position to contest the payment to the representatives of George A. Allen.

HUGH GARLAND

V.

ANN SMILEY et al.

1. Testator bequeathed $150 to A., charged on land devised by the will, and payable within two years after his death, provided she should be in good health and mind, and, in case she should not be in good health and mind, within three years after testator's death the sum should be paid to her three children, in equal parts, as they arrived at the age of twenty-one years, respectively.-Held, that where the alternative clause of the will came into effect by reason of A.'s insanity at the time of testator's death, and her failure to recover her reason within three years thereafter, the bequest, as to one of her children, lapsed, where he died before reaching the age of twenty-one years.

2. Where the other two children are minors, the person to whom the land on which the payment of the legacy is chargeable is devised may pay it into court, where it shall remain until the time at which, by the provisions of the will, it may be payable; Rev. p. 1248, providing for the payment into court of legacies charged by will on land, where the vesting of the legacy may be contingent.

Garland v. Smiley.

On bill, answers, replication and proofs in open court.

Mr. James R. Bowen, for the complainant.

Mr. John A. Dennin, for the defendants.

GREEN, V. C.

This bill is filed by Hugh Garland, a son of James Garland, late of Jersey City, deceased, who was seized at the time of his death of an undivided half part of a certain tract of land in Second street in said city, complainant being the owner of the other undivided half of the tract mentioned. James Garland died June 16th, 1882, leaving a last will and testament, dated May 5th, 1882, which was duly admitted to probate June 30th, 1882. Among other things said will provided as follows:

"Second, I give and bequeath to my beloved son Hugh Garland, all my estate that is to say, all my real estate situated in Second street in Jersey City aforesaid; to have and to hold the same to himself, his heirs and assigns forever, subject to the following conditions; that is to say, that my said son Hugh Garland shall pay to my beloved daughter Ann Smiley the sum of one hundred and fifty dollars, in case she shall be in good health and mind and shall pay the same within two years after my decease; and said bequest of one hundred and fifty dollars to my said daughter Ann Smiley shall be a charge on, and lien against, my said real estate until paid; and in case my said daughter Ann Smiley shall not within three years after my decease, be in good health and mind and shall not be paid the said one hundred and fifty dollars, for the use of and in trust for the children of my said daughter Ann Smiley, that is one-third part for each of said children to be paid to said children as they respectively arrive at the age of twenty-one years; this reference being to her three sons now living, and my said son Hugh Garland shall also pay to my daughter Mary McBride the sum of one hundred dollars, and this bequest shall also be a charge against and lien on said real estate until paid."

The complainant is the devisee named in this paragraph of the will. The $100 has been paid to Mary McBride as therein directed. The person referred to in the will as Ann Smiley is now and has, continuously, since 1881, been confined in the lunatic asylum at Snake Hill, in the county of Hudson, as a lunatic. She has not, therefore, within three years after the decease of

Garland v. Smiley.

James Garland, been "in good health and mind," as described in said will.

The three sons of Ann Smiley referred to in the will, to each of whom the one-third part of the said $150 should be paid, under the will, if their mother should not, within three years after James Garland's decease, recover her reason, and should not be paid the said sum, were James Smiley, Harry Smiley and George W. Smiley. James, at the time of the filing of the bill, was between eighteen and nineteen years of age; Harry, between sixteen and seventeen; George W. having died October 28th, 1890, being, at the time of his death, between thirteen and fourteen years of age. He left him surviving as his heirs-at-law and next of kin, his father, Henry Smiley, his mother, the said Ann Smiley, and his brothers, the said James Smiley and Harry Smiley, and his sisters, Theresa Ulrich, wife of William F. Ulrich, Ida Smiley and Gracie Smiley. Ida and Gracie Smiley are infants under the age of fourteen.

Complainant having been, at the time of the death of his father, the owner of an undivided one-half of the premises, the other one-half of which was devised to him by the will, files this bill against all parties whom he considers may have an interest in the estate, for the purpose of having their rights determined, and has paid into court an amount more than sufficient to pay the $150 and interest, if any is payable thereon.

Ann Smiley not having recovered her reason within three years after the death of the testator, the alternative condition of the will as to the $150 came into operation, namely:

"for the use of and in trust for the children of my said daughter Ann Smiley -that is one-third part for each of said children, to be paid to said children as they respectively arrive at the age of twenty-one years; this reference being to her three sons now living."

The last clause limits the bequest to the three sons living at the date of the will, and as the designation of one-third part for each, takes it out of so much of the rule which applies to bequests to a class, by which survivors could take the whole, it is practically a bequest of $50 each to the three grandsons, James,

Garland v. Smiley.

Harry and George W. With reference to the first two, their legacies are a charge on the real estate devised, payable at the time prescribed therefor, and do not bear interest except from the time of payment. The more serious question arises as to the bequest of the one-third of the $150 to George W. Smiley, who died during infancy. The bequest of the $150 to his daughter Ann is expressly declared by the testator to be a charge on and lien against his real estate until paid. This charge on the real estate is not relieved by the alternative condition of the bequest. All of the testator's real estate was devised to the complainant and charged with the payment of this amount.

If the $50 bequeathed to George W. had not been charged on the real estate, he having survived longer than three years after the death of the testator, the legacy would have vested in him, notwithstanding his death before twenty-one, and have passed to his legal representatives. This rule was adopted by courts of equity in compliance with the practice of the ecclesiastical court, which, in those matters, had concurrent jurisdiction. 1 Rop. Leg. (2d Am. ed.) 650. When, however, the legacy was charged on real estate, such disposition not being within the ecclesiastical jurisdiction, courts of equity followed the common law, and the rule thus stated in Hawk. Wills *234:

"Legacies charged on land do not vest before the time appointed for payment, unless an intention appear to the contrary; thus a legacy to A. payable at twenty-one, charged upon land, fails by the death of A. under twentyone."

See, also, 1 Rop. Leg. (2d Am. ed.) 650 et seq.; 2 Jarm. Wills (5th Am. ed.) 834; 2 Wms. Exrs. (6th Am. ed.) 1252; 2 Redf. Wills 504; Beach Wills § 179; 13 Am. & Eng. Encycl. L. 42.

Chancellor Walworth, in Birdsall v. Hewlett, 1 Paige 32, says: "It is undoubtedly a general rule that 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 relation to the legacies payable out of the personal estate. This was done for the