#### Wm. Feemster, Adm’r of John J. Roberts *v.*Josiah Smith, Adm’r of John Roberts and Adm’r *cum testamento annexo*of Andrew Roberts.

The testator, Andrew Roberts, by his last will and testament, devised, (among other things) as follows ; “ *Item,*my will is for my wife to have any such property as her and my executor shall think proper for the support of her and my child, without being put to sale.” “ *Item,*I leave it with the discretion of my executor to sell such property as he thinks proper, for the best advantage of my family.” “ *Item,*my will is for my wife to have this support during life or widowhood, and if she marries, *my will*is for my child to be raised at the discretion of my executor.” “ *Item,*my will is for my son John J. Roberts to have, at the death of my wife, all and singular the rights and credits of my whole estate, both real and personal, to have and to hold, and if he is not raised to have *an heir of his own holy,*my will is for my brother, John’s son, *Andrew Jackson,*to have all my property, at the death of my child.” Held, that the devise over to *Andrew Jackson*was not too remote, even as to *personalty,*that on the death of the testator’s son John J. Roberts, intestate, and without issue, he took the estate devised by the will, and was entitled to any interest which had accrued on the funds in the hands of the administrator, derived from the estate of *Andrew Roberts,*after the death of the said Andrew Roberts, and during the life time of *John J. Roberts.*

*35*Before HARPER, Chancellor, at York Term,*1836.

Thís case came up on an appeal from the decree of his honor, Chancellor Harper. The decree, which embodies a full statement of all the facts in the case, is as follows :

“ Andrew Roberts, by his will, executed in 1833, after expressing his intention to dispose of his worldly estate, devised as follows : * Item, my will is for my wife to have any such property as her and my executor shall think proper for the support of her and my child, without being put to sale,’ ‘ Item, I leave it with the discretion of my executor to sell such property as he thinks proper for the best advantage of my family.’ ‘ Item, my will is for my wife to have this support during life or widowhood, and if she marries, my will is for my child to be raised at the discretion of my executor.’ ‘ Item, my will is for my son, John J. Roberts, to have, at the death of my wife, all and singular the rights and credits of my whole estate, both real and personal, to have and to hold, and if he is not raised to have an heir of his own body, my will is for my brother John’s son, Andrew Jackson, to have all my property at the death of my child.’ ”

The testator makes his brother, John Roberts, sole executor.

John Roberts proved the will, and sold part of the personal estate, and after-wards died.

The defendant, Josiah Smith, administered on the estate of John Roberts, and likewise cum testamento annexo on that of Andrew Roberts.

John J.Roberts, the son of the testator, died after his father, intestate, and administration on his estate’ has been committed to the complainant.

The bill charges the limitation over to Andrew Jackson Roberts to be too remote and void, and prays an account of the estate of Andrew Roberts, in the hands of the defendant.

The defendant, by his answer, (which is not questioned,) states, that all the estate which was not sold, consisting of lands and slaves, was put by the executor into the hands of the widow, for the support of herself and her son, in pursuance of the will. He admits *36that assets have come into his hands, arising from the sales made by the executor, and says he is ready to account to the person authorized to receive them. If the limitation over be valid, “ he submits whether the same took effect immediately on the death of John J. Roberts, so far as regards the property'in the possession of the widow, or whether she is, notwithstanding the death of the said John J. , for whose benefit in part the possession was delivered to her, entitled to retain the same during her life or widowhood; or, if so, whether the whole, or any part thereof.”

With respect to the provision to which the widow may be entitled under the will, since the death of her son, *there*can certainly be no determination in a cause to which she is not a party, nor would she be bound by any determination which the court might make. The unsold property is in her possession by the delivery of the executor, and the defendant is not accountable for it. I have no hesitation in saying, however, that whatever provision she may be entitled to, she is entitled to it either for life or widowhood. Though the estate is given over by the testator on the death of his son; yet, certainly, it was not intended by that, to abridge the duration of her estate in the provision. The testator, I suppose, contemplated that his son would survive his wife, and in that event, would of course have taken her provision for life. But in the event that has occurred, the terms of the will may be perfectly satisfied. The testator gives over, on the death of his son, the entire estate which was given to the son. What was that estate? I think, that at the time of his death, he had a vested remainder in *the*whole estate, and if the limitation over be good, that remainder goes to the executory devisee. It vests in interest, though as to the wife’s provision, it cannot vest in' possession until the limitation of her estate. If the estate had vested in possession in the son before his death, then that estate would have gone over.

The only question then, which can arise in this case, relates to the personal effects in the hands of the defendant. And I cannot see how it should have occurred to any one to raise a question as to the goodness of the limitation. The words of the will, with more precision than I have known in any such case, limits over the estate *at the death*of the first taker of the inheritance, who *37was then in existence, explicitly limiting the executory devise to a life in being. I suppose this was suggested by the term “ heir of his body,” occurring in the clause. But if the devise of personalty had been expressly to him and the heirs of his body forever, and on failure of such heirs, then *at his death over,*there could have been no question about the goodness of the limitation over. I need not refer to common cases of a gift to one and the heirs of his body or issue, and if he die *having*no issue, over, that the word *leaving*is held to relate to the time of the first taker’s death, but much less unequivocally than in the present case, or of a gift to two and the heirs of their bodies or issue, and if either die without issue, to -the *survivor.*But in this case the gift' is not to the son and to the heirs of his body. The gift is at first absolute in its terms, and the will goes on, “ but if he should not be raised to have an heir of his own body,” &c. Now, whatever sense we give to the words “ heir of his own body,” whether it is “ child,” or the person who should answer the description of heir at the time of his death, or in the technical sense, US' nomen colléctivum, to signify the whole line of succession, which are the various senses in which the word has been used, still the event on which the estate is to go over, is clearly restricted to the death of the first taker. I have little doubt, but that the first is the true one, and that it is as if the words of the will had been after giving generally, *“*and if he shall not be brought up to a mature age,” which is the one in which the word “ raised ” is vulgarly used, “ so as to have a child born, then at his death,” &c. The case - of Pinbury v. Elkin, 1 Pr. Wms 563, is in point to the present case, though less strong. The testator gives his wife his whole personal estate, and if she ■ shall die *without issue,*then, *after her death,*a legacy to the testator’s brother. The words, “ after her death,” were held to restrict it to a failure of issue at the time of her death. Here there is nothing of *dying without issue,*and the words, “ at his death,” are much more explicit than in the case referred to.

The only question in the cause seeming to me to admit of doubt is, whether the legal representative of John J. Roberts is not entitled to any interest which may have accrued on ■ the fund in the defendant’s hands during the life time' of his intestate. And this, I *38think, must depend on the question, whether the fund vested in the intestate. It is a well known rule, that if a specific or pecuniary. legacy be given per verba de presentí', but to be paid at a future day, then, though the legacy is immediately vested, yet the legatee is not entitled to interest or profits, until the day of payment arrives. But it is equally well settled, that if a residue, or an estate generally, be given, to be paid or received at a future day, though it may be subject to be divested by a contingency to happen before the day, there the legatee is entitled to the interest up to the time of the contingency happening; as in Green v. Ekins, 2 Atk., 473, where a father gave his personal estate to his daughter F., to be paid at twenty-one or marriage, but if she should die before the age of twenty-one or marriage, then to such son of his daughter B. as should attain the age of twenty-one. F. survived her father, a year and a half. The chancellor was clear that F’s estate vested, and that her personal representative was entitled to the interest which accrued during her life time.

The only question disputed in the cause, was as to the profits from F’s death, until the contingency was determined, whether B. would have a son to attain the age of twenty-one. Until that was determined, the estate would not vest,-and it was contended that the accruing profits must go to the next of kin, as being undisposed of by the will. But the chancellor held, that they must accumulate for the benefit of the person who should be entitled when the contingency was determined. The case of Chaworth v. Hooper, 1 Br. C. C. 82, is express to the point under consideration. So, also, Tissen v. Tissen, 1 Pr. Wms., 500, and Nicholls v. Osborn, 2 Pr. Wms., 418. If an estate be given to one for life, remainder to another, then of course, though the estate be vested in the remainder man, he takes no profits during the life time of the tenant for life, because they are otherwise expressly disposed of. But in every instance where the residue or an estate is given, and is vested in the legatee, and there is no other disposition of the accruing profits, they must belong to the legatee, and if the estate be limited over on an event subsequent, and the event happens, they will not go to the devisee over.

If a legacy be given at a future day, or upon the happening of *39a future event, or upon the legatee attaining twenty-one, then in general, it will not vest until the day arrives of the event happens. Green v. Ekins, ante ; Smell v. Dee, 2‘Salk., 415; Spink v. Lewis, 3 Br. C. C. 355; Sansbury v. Read, 12 Yes., 75. Yet, this is said to be an arbitrary rule, derived from ecclesiastical courts, which is not followed in the case of land, and that courts of equity favor the vesting of legacies, Mackell v. Winter, 3 Yes. 543. There is, hówever, another class of cases, where the legacy, though seemingly given on a future contingency, has been held to vest from the death of the testator, as explained by Sir William Grant, in Blamire v. Geldart, 16 Yes., 314, and settled’in the cases there referred to, where the words “ at ” or “ after ” the death of a particular person, have been held not to denote a condition that the legatee shall survive such person, but only to denote the time at which such legacy shall take effect in possession ; that possession being deferred on account of some interest in the subject being given to the person on whose death the gift is to take effect. In that case the testator gave a legacy of £500 after the death of his wife, to whom he gave the residue of his estate. This was held to be vested, but the legatee of course received no interest during the life of the wife to whom it was in effect given by residuary bequest. The peculiarity of the present case is this: — The wife can take no interest in the fund in the hands of the defendant. By the express terms of the will .nothing is given her but the property, which shall remain unsold. Yet, the devise, after her death, of the estate is one and entire, and if there was a vested remainder in the provision made for her, this fund would also be vested; and being vested, and no other disposition made of the interest, the remainder man must take it. The reason of this disposition is obvious from the will. It was quite uncertain what portion of the estate the wife would take, the testator leaving that to be settled by the executor and herself. He could not, therefore, specify any thing to be personally given to the son. The possession, therefore, was plainly deferred on'account of the interest given to the wife, and I must conclude that the giving at her death was not intended to denote a condition that the legatee should survive her, but only when the legacy should take effect in possession.

*40It is, therefore ordered and decreed, that the defendant account with the complainant for any interest which may have accrued on the fend in his hands, derived *from the estate of*Andrew Roberts, after the death of the said Andrew Roberts, and during the' life time of John J. Roberts. Parties to pay their own costs.”

The complainant appealed from the foregoing decree, on the following ground:

Because the limitation over to Andrew J. Robert's was too remote, and void, and the decree should, therefore, have been for the complainant.

Per Curiam.

The Court concur in the decree of the Circuit Court. It is, therefore affirmed, and the appeal dismissed.

David Johnson,

Benj. F. Dunkin,

Wm. Harper,

J. Johnston.