#### Rowlett and Wife v. Rowlett’s Ex’ors.

January, 1834,

Richmond.

(Absent Tucker, P., and Green, J.)

Wills — Construction—Bequest lor Particular Purpose-Right to Surplus from.* — Testator bequeaths slaves to his sister for life, remainder to her seven children ; then bequeaths bank stock to his sister for life, without further disposition; and then directs all moneys he may have at his death, to be put out at interest, and the interest applied to education of his sister’s three younger children, A. P. and M. and the principal, at his sister’s death, to be equally divided among all her seven children; and he bequeaths the residuum of his estate to his niece M. — it turns out, that there is a surplus of interest of the money unexpended in education of the three younger children : Heed,

1. Same — Same—Same—Same.—This surplus of interest is not bequeathed to testator’s sister, by implication, nor to the residuary legatee, but belongs to the three younger children for whose education it was destined, but not so applied.

2. Same — Same—Vesting of Legacies, † — That each of,the seven children took a vested interest in his share of the principal of the money, so that in case of his death before his mother, his share devolved to his personal representative.

William Rowlett late of Chesterfield, died in 1811, and by his last will and testament, devised and bequeathed the use of a parcel of land in Chesterfield, and of all his slaves *(except four), all his stock of horses (except two), sheep, cattle and hogs, and a' 1 his household and kitchen furniture to his sister Mary Rowlett for life. And, after devising' the remainder of the laud expectant on her life estate, and making several devises of other lands, and specific legacies of the four slaves and two horses excepted out of the bequest to his sister, and a legacy to his nephew Thomas Rowlett of the remainder of a female slave - bequeathed to his sister for life, with all the increase of that slave, he bequeathed as follows; “At the death of my sister Mary Rowlett, I will and bequeath to my nephews and- nieces, namely, Thompson, William, Peter, John, Archer, Polly and Martha Rowlett, all my slaves not before specifically devised, to be equally divided between them, and their heirs forever. My bank stock in the Petersburg branch bank of Virginia, I desire may remain untouched during the continuance of the bank charter, the dividends of which only I give to my sister Mary Rowlett during her life. All the moneys I may be possessed of at my demise, I desire may be put out at interest; the amount of said interest to be applied to the education of Archer, Polly and Martha Rowlett; and the said principal equally divided (at the death of sister Mary Rowlett) between my aforesaid nephews and nieces, Thompson, William, Peter, John, Archer, Polly *and*Martha Rowlett, and their descendants. ’ ’ The testator then bequeathed to two of his friends, the amount of the debts they owed him, -and concluded with the following residuary clause: 1 ‘ The balance of my estate if any there b.e, whether real or personal, not heretofore given, X give to my niece Martha Rowlett.” And he appointed William Rowlett of Mecklenburg and John Hare his executors, and trustees of the property given to his sister Mary Rowlett for life.

Both the executors qualified as such. The executor William Rowlett was the husband of the testator’s sister Mary, and his seven nephews and nieces, legatees in his will, were their children. Archer, Polly and Martha, were the three youngest; one fourteen, one eleven, and the other *seven years old, at the testator’s death. The testator’s sister Mary lived till 1824; her husband survived her. Of the testator’s nephews and nieces, Thompson, Archer, Polly, Peter and John died before their mother; Thompson left descendants; Polly married, and left her husband and one child her surviving; Archer married, and left his widow him surviving, but no descendant; Peter and John left *no*descendants: the legatees William and Martha Rowlett survived their mother. Martha married another William Rowlett.

The moneys which the testator possessed at the time of his decease, amounted to 2531 dollars. A part of the annual interest (which at six per cent, was about 151 dollars) was applied to the education of the legatees, Archer, Polly and Martha; but at the time of the death of the testator’s sister Mary, there was a balance of interest in the hands of the executor Hare, of 771 dollars, which had not been expended in the education of those legatees.

In a suit brought in the superior court of chancery of Richmond, (afterwards transferred to the circuit superiour court of.Hen*19rico,) by William Rowlett and Martha his wife against the testator’s executors, the representatives of the co-legatees of the female plaintiff who were dead, and her surviving co-legatee, two questions were presented for adjudication:

1. To whom did the unexpended surplus of the interest of the fund of 2531 dollars, in the hands of the executor Hare, belong? to the female plaintiff as the residuary legatee? to William Rowlett the husband of the testator’s sister Mary? or, in equal portions, to the female plaintiff and the representatives of her co-legatees, Archer, and Polly Rowlett?

2. To whom did the shares of the principal sum of 2531 dollars, intended for John, Peter and Archer, who died before their mother, leaving no descendants, belong? To the female plaintiff as the residuary legatee? or to the representatives and distributees of John, Peter and Archer, respectively? in other words, were the legatees of those shares to those three deceased legatees, vested legacies, or contingent *upon their surviving their mother, or leaving descendants in case they died before her?

The circuit superiour court determined both points against the plaintiffs; deciding, by its decree, that the unexpended surplus of the interest of the fund, over and above what had been applied to the education of Archer, Polly and Martha, belonged to William Rowlett the husband of the testator’s sister Mary, being bequeathed by implication to her; and that the legacies to Peter, John and Archer, of equal shares of the principal, were vested legacies, which devolved to their respective representatives and distributees. From this decree, the plaintiffs prayed an appeal, which was allowed by this court.

Spooner, for the appellant,

maintained, 1. That the unexpended surplus of the fund of 2531 dollars, which the testator dedicated to the purpose of educating his nephew and nieces, Archer, Polly and Martha, was not bequeathed by implication to his sister Mary; for he had already made ample provision for her, without indicating a design to give her any interest whatever in this fund, principal or interest ; and the postponement of the division of the principal among her seven children till her death, was to be accounted for by the circumstance, that he had appointed that period for the division of the slaves he had bequeathed her for life. He could not have intended, that any of the interest of the fund should enure to the benefit of his sister; for he directed, that the amount of the interest should be applied to the education of the three children. Yet he must have foreseen, that the children might attain to such an age before their mother’s death, that the interest of the fund could no longer be applicable to their education. The legacy of the interest, then, was limited by the purpose to which it was destined. Indeed, he did not bequeath this interest to the three children; he only directed the application of it, or of so much as should be sufficient for the purpose, to their education; that is, doubtless to their education during their minority. Therefore, he argued, the interest *over and above what was sufficient for the purpose, and that which accrued after the purpose was accomplished, not being otherwise disposed of, sunk into the residuum, and belonged to Martha Rowlett the residuary legatee. 2. He contended, that the request of the principal of the fund, to the seven nephews and nieces, to be divided between them at the death of their mother, did not give a vested legacy to each, but a contingent legacy to each, dependent on the event of his surviving his mother, or if he died before her, leaving descendants; that, therefore, the legacies to Peter, John and Archer, who died before their mother without leaving descendants, were disappointed by the event; and that their shares of this fund also, sunk into the residuum, and passed to the residuary legatee.

Taylor, for the appellees, submitted, that it was quite clear, that the bequest of the principal gave a vested legacy to each of the seven legatees, to which they or their representatives were entitled, whether they survived their mother, or, dying before her, left descendants, or not. Upon the other point, he contended, that the surplus of the interest over and above what might be requisite for the education of Archer, Polly and Martha, and, especially, so much of the interest as could not be applied to their education, because it accrued after it was no longer capable of application to that purpose, belonged to the testator’s sister Mary; that the effect of the will was a bequest by implication of the interest of the fund to her, charged with the education of those three children. Why did he postpone the division of the principal till her death, if he intended that no benefit should accrue to her from the fund during her life? He must have foreseen (as the appellant’s counsel had justly remarked) that the interest might cease to be wanting for the education of the three children, before their mother’s death; he must have foreseen, too, that they might all three die within a short time after him: if he intended no benefit to their mother, he would have directed the division of the principal to be made, so soon as the means of educating the three children should cease to be wanted. But without regard to the purpose of *'the education being accomplished, or ceasing, before his sister’s death, he postponed the division of the principal till her death. This was a bequest, by implication, to the mother of the children, of the surplus profits accruing during her life. Roe v. Summerset, 5 Burr. 2608; Goodright v. Hoskins, 9 East 306; Hammond v. Neame, 1 Swanst. 35; Bird v. Hunsdon, 2 Id. 342. The testator gave the mother of his nephews and nieces, the use for her life, of all the other property he destined as a future provision for them; of his slaves and all his visible personal chattels, and the dividends of his bank stock: and he made this provision for her, not merely for her own benefit, certainly, but to enable her to provide for the comfort of her children. The only difference intended by him in the disposition of this pecuniary fund, was to provide for the ed*20ucation of three of her children (the'three youngest) out of the profits of it; and, subject to that charge, he meant to give her the profits of this fund, in like manner as he had given her the use of the other property for her life. ; • : ; •

*

Wills — Bequest for Particular Purpose — Appropriation for That Purpose Impossible — Effect.—Where a legacy is given to a person to answer a particular purpose, to which it becomes impossible to appropriate it, but from no fault on the part of the leg. atee, he will be entitled to the legacy ; for the expression of a particular purpose for which the gift is made will not operate as a condition or limitation óf the bequest. This rule rests on the plain and obvious principle that the fund being appropriated to the benefit of the legatee, the mode in which it shall he applied or enjoyed is but a secondary object, and does not enter into the substance, or constitute a qualification or condition, of the gift. For this proposition, the principal case is cited with approval in Dunlop v. Harrison, 14 Gratt. 267; Young v. Vass, 1 Pat. & H. 175, 177.

†

Same — Vesting of Legacy. — When the postponement of distribution of a legacy is made only to give precedence to another interest, the legacy will be held vested, notwithstanding the gift is in the form of a direction to divide among the obj ects at the prescribed period. Brent v. Washington, 18 Gratt. 529, citing the principal case.

In a *foot-note*to Harrisons v. Harrison, 2 Gratt. 1, the facts and decisions in Taliaferro v. Day, 82 Va. 91. are given, and the principal case is cited in one of those on which the court based its opinion.

For rules governing the construction of wills as to when estates vest, see further cases and notes cited in *foot-note*to Hansford v. Elliott, 9 Leigh 79.

CARR, J.

The first question is, to whom l the surplus of the interest of the pecuniary fund of 2531 dollars belonged? to the testator’s sister Mary Rowlett? to the residuary legatee, Martha? or to the three children Archer, Polly and Martha, to the education of whom the testator directed the interest of the fund to be appropriated? The circuit superiour court decreed it to Mary Rowlett; and the decree has been sustained in argument here, on the ground, that the principal of the fund being directed to be divided among the seven nephews and nieces, at her death, amounted to a bequest to her by implication, of this surplus of interest accruing during her life; and many cases were cited to shew, that estates real and personal are given by implication, sometimes even to the disinheriting the heir.' There can be no doubt of the doctrine; but it is equally clear, that an implication which will carry such estate, must be necessary, in order to effect the clear intent of the testator. Is it so here? I think not. ' ■ i i : : ; ■ ■ ; : ■ ■ i . ■ : ■ : To arrive at the conclusion, that : *the testator intended that the surplus interest should go to his sister Mary, we must first ascertain, that he contemplated the existence of such surplus. He directs his money to be put out at interest, and the amount of the interest to be applied to the education of the three children ; the amount, that is, not a half, a fourth, or so much as others may choose to expend, but the whole interest is to be so applied. This is the clear meaning. The fund would yield about 150 dollars a year; only 50 dollars for each; and this ought all to have been expended on their education. The kind of education intended by the testator, should have been measured by the fund; and they should have been benefited in the cultivation of their minds and manners, to the full amount of the sum- he had appropriated.

Seeing that the testator meant to appropriate the whole to their education, we cannot suppose he looked to any excess. If it be asked, how would the interest have gone, if the children had died soon after the testator? I answer, this idea probably never occurred to him, and can furnish no ground of implication in favor of his sister, who being much older than these children, could hardly be looked to by him as likely to outlive them.

As to the argument drawn from fixing the ■division of the principal money at the death of his sister; that may be accounted for, I think, on other ground. The land and slaves are lent to his sister expressly for her life, and at her death the different : 'tracts are disposed of, and the slaves are : to be divided among her seven children. : This then being the time when these other ' distributions would take place, it might *<*have struck the testator, as a convenient < period to divide this money also. There is J nothing, I think, which shews any intent 1 to give this surplus to his sister, strong ) ; enough to raise a bequest to her by impli- • cation.

: Shall this go to the residuary legatee? ; This question is more doubtful. In Cam• ridge v. Rous, 8 Ves. 25, sir W. Grant says, ‘ ‘It has been long settled, that a residl uary bequest of personal property (for it ' is otherwise as to real) carries not only every thing not disposed of, but every thing *that in the event turns i out not to be disposed of: not in con-i sequence of any direct or expressed inten- : tion; for it may be argued in all cases, : that particular legacies are separated from ; the residue, and that the testator does not ■ mean, that the residuary legatee shall take ■ what is given from him: no; for he does ; not contemplate the case: the residuary : legatee is to take only what is left: but ■ that does not prevent the right of the resid- ■ uary legatee. A presumption arises • for i the residuary legatee, against every one . except the particular legatee. The testator ■ is supposed to give it away from the resid- ' uary legatee, only for the sake of the par- : ticular legatee. ” And again in Dawson v. Clark, 15 Ves. 416-7, the same distin- ■ guished judge says, “I have always under- : stood, that a general residue of personal property comprehended every thing, not : otherwise effectually disposed of by the will-; and that there is no difference, whether a legacy falls into it by lapse, or as being void at law.” -This, which seems to be the settled law on the subject, makes the case of a residuary legatee a strong-one; and if it can be considered, that this surplus of interest is lapsed, undisposed of, or ineffectually disposed of, I agree, that the residuary legatee must have it. That it is lapsed, was not contended; but the idea seemed to be, that it was no bequest of any thing to the three children, but' merely a direction to the executor to apply so much of the interests, as he might choose, to their education, and that the surplus, if not given by implication tp the mother, was undisposed of. The first objection to this construction, is, that it holds out a strong temptation to neglect the education of the children; for here, the father, as-executor and natural guardian, had control of this fund, and in right of his wife claims all the surplus interest. It is clear, then, that the less he expended on the education of the infants, the larger would be the excess which he claimed. But look at the bequest itself: to my mind it is substantially this: My executor is to put to interest all my money, and it is to remain at interest till the death of my sister Mary *p*this interest, which will amount to about 150 dollars annually, I give to Archer, Polly and Martha Rowlett, to be applied to *their education. I think it is im- : : : ' *<*< J 1 ) possible to deny that this is a fair and faithful expression of the testator’s meaning; and to what does it amount? Is it not a gift of this entire fund to these infants? Can one say, that the testator did not wish and intend, that every cent of his interest should be laid out in their education? If the executor and guardian had so expended it, who could have charged him with going beyond his duty? But he has suffered their minds to remain unculti*21vated, while the fund accumulated, by which neglect of duty he has probably done ■them an irreparabLe injury: shall this very injury be the foundation of a claim to the fund? Can any body doubt, that, if the guardian or some friend of these infants had filed a bill, and brought the subject before a court of equity, the court would have taken effectual steps for the application of this whole fund to their education and maintenance? And as that is now impossible, and rendered so by no fault of ■theirs, will not equity repair the injury, as far as it can, by giving them this money now, which the testator devoted exclusively to their benefit? Reeling this strongly to be the justice of the matter, I could not but think, that cases would be found to support it; and an examination has satisfied me that the fact is so. The rule which these cases establish, is this: where a legacy is given to a person to answer a particular purpose, to which it becomes impossible to appropriate it, but from no fault in the legatee, he will be entitled to the money; and it rests on this principle, that the fund being appropriated to the benefit of the legatee, the mode in which it shall be applied is but a secondary object, and does not enter into the substance of Ihe gift. Thus, in Barlow v. Grant, 1 Vern. 255, the bequest was of £30. to A. an infant, to bind him apprentice; A. died before attaining the proper age to be put out apprentice; and the question was, whether his executor was entitled to receive the money? It"was decreed to him, on the ground that A. took a vested interest. In Nevill v. Nevill, 2 Vern. 431, the testator gave £500. to the eldest son of John Nevill (to be begotten) to place him out apprentice (or, as in the registrar’s book, “for *putting him forth either to law or merchandise”) : John had a son born after the death of the testator, who claimed the legacy; though he was unfit to be placed out, as directed by the will, yet the legacy was ordered to be paid to him. So in Barton v. Cooke, 5 Ves. 462, testator directed his executors to apply £100. for the board and education of J. B. until he were fit to be put out apprentice, and that then they should pay the further sum of £100. with him, as an apprentice fee. It appeared, that J. B. attained the age of nineteen, but had not been placed out apprentice. The question, whether he was entitled to the two legacies of £100? Lord Alvanley decreed them to him; adding, that if a legacy is given for the benefit of an infant in one way, and it cannot be so applied, it may be applied for his benefit in another way ; and he put the case of a legacy given to put an infant into orders, and he should become a lunatic. Other case are referred to in the books; 1 Eop. on Leg. 430, but these are enough to shew the rule.

I am, therefore, of opinion that this legacy vested equally in the three children, Archer, Polly and Martha ; and that Archer ■dying, his portion went to his general distributees.

I am of opinion also, that the seven children took vested interests in the principal sum put out to interest during their mother’s life.

CABELL and BROOKE, J., concurred. Decree reversed.