Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1892-05-05
4 rEsrAMENTARr PUZZLE.
Decision of an Interesting Controversy
Growing Out of the Will of the Late
Joseph Dean.

Decision of AN Interesting Controversy
Growing Out of the viii of the Late
Joseph Dean.
The Dean will case, which was deter
mined by Judge Wales in this city,som
time since, in favor of the heirs of one
of the beneficiaries, was appealed to the
circuit court Of appeals. The latter
court, sitting in Philadelphia last week,
confirmed the decision of Judge Wales.
A summary of the case is as follows:
Joseph Dean, by his will dated
January 9th, 1860, directed, inter ALA,
asfollows:
First. That all his debts and funeral ex-
penses shall be paid as soon as possible
after his deceasc.
Secondly. That his wife shall receive the
interest on five thousand dollars during
her life time, in lieu Of her dover at com.
mon law, II she shall so elect. 4
On the death of my beloved wife, the in
terest of said five thousand dollars to be
paid to her daughters, Elizabeth Scar
borough and Ann Jones, ia equal parts
during their lives. In case of the death of
either or both of the aforesaid Elizabeth
Scarborough and Ann Jones before ten
years from the date of this will, my son,
William Dean, is to have the use of the
said five thousand dollars. by paying the
interest to the children of the said Eliza
beth Scarborough and Ann Jones. After
the death of Elizabeth Scarborough and
Ann Jones, if they should die before the
expiration of the aforementioned ten
years, at the expiration of the above-men-
toned ten years, in case either or both the
aforesaid Elizabeth Scarborough and Ann
Jones should have died, the money shall
be divided in two equal parts, and be
divided between their children equally.
Thirdly. do give and bequeath to my
son, William Dean, after all my debts,
funeral expenses, and the above mentioned
five thousand dollars are paid, or secured
to be paid. the. residue of my estate, real
and personal, of all and every description,
Of which may die seized or possessed.
Ann Jones died more than ten
years after the death of Joseph Dean,
and suit was brought in the United
States circuit court for the district of
Delaware, by her heirs to recover the
one-half of the legacy or $5,0O0.00.
Elizabeth Scarborough died after the
present suit was begun.
The questions raised by the bill and
answer were whether the legacy be-
queathed to the children of Ann Jones
was vested OF contingent, and, if vested,
whether it was or not a charge upon the
real estate owned by the testator at the
time OF his death.
1t was claimed by the defendant that
the legacy to the children of Elizabeth
Scarborough and Ann Jones was made
contingent upon the death of one or
both Of their mothers within ten years
from the date of the will, and, that as
both Elizabeth and Ann survived the
ten years limit, the contingency on
which the legacy to their children de-
pended never happened. That, IS
neither Elizabeth nor Ann was dead at
the expiration of the ten years, no
division of the fund could be made, be-
cause the will was silent as to how a
division should be made under such cir
cumstances.
The court held that the burden Of
proof is always upon the party who
claims that legacy is contingent, and
that remainder will not be construed
as contingent when it can be construed
consistently with the testator's intention
to be vested.
The residuary clause showed that the
testator meant to dispose of all his prop
erty absolutely, and that by the use of
the words "paid or secured to be paid" +"
he contemplated the payment of the
| $4,000 to the children of Elizabeth and
Ann. But in no event was the testator's
son to be called on to pay thatsum until
the end of the 10 years limit. This
condition was attached to the time of
payment and not to the legacy, which
makes the difference between vested
| and q contingent remainder. The
| legacy to the children of Elizabeth and
Ann therefore vested Immediately, but
| tho time of ifs novmant wac ,,nstpopaS
The collocation of words used by the
testator might suggest or import a con-
tingent remainder, but there is no such
clearly expressed intention in his will,
viewed as whole, which would sup
port the claim of the defendant The
context of the will was inconsistent
with such intention.
There was still less doubt on the
second question, the rule being that
where the testator gives several legacies
and then without creating an express
trust to pay them, makes general resi-.
duary disposition of the whole estate
blending the realty and personally To.
gether in one fund, the real estate will
be charged with the legacies. For in
such a case the residue can only mean
what remains after satisfying the previ.
Gus gifts. William Dean was to receive
the whole estate of the testator less the
debts, funeral expenses and the above
mentioned five thousand dollars" which
last sum was to be paid or secured to be
paid before he could claim the residue.
The decree of the court in favor OF
the heirs of Ann Jones has been af-
lirmed by the circuit court of appeals
sitting at Philadelphia.