Page:The English Reports v1 1900.pdf/1393

a party is entitled, whether it be a right in present possession, or a right to come into possession upon the happening of a future event, is an interest vested. It is assignable, it is transmissible to an administrator, it is deviseable by will, and passes to an executor. In the present case, Mrs. Thicknesse attained her age of 21, in the lifetime of Mrs. Lanove; she was the only one of Mrs. Lanove's children who did attain that age; consequently the youngest who attained 21; and upon her attaining it, she took a right to the whole fund, subject to the claim of her mother to receive the profits for her life. It was therefore vested in Mrs. Thicknesse, and transmissible to her administrator, as effectually as if the testator had said, "that when the youngest of Mrs. Lanove's children should attain 21, the fund should be divided among all the children, their executors and administrators;" for being personal property, the gift alone imports its being so transmissible. This interest could [372] not be divested out of Mrs. Thicknesse, but by some express provision in the will for that purpose. There was no divesting clause in the will, but there was a clause giving it over in case it should never vest; and this clause fortified the intent of the testator in the former, for that clause must of necessity import the reverse of the contingencies, upon which the grandchildren were to take an interest. The fund was to be divided among all the children, when the youngest should attain 21; and if any of them should be then dead, leaving issue, such issue was to stand in the place of the parent: the reverse of this was, if there should be no child, or if they should all die before the youngest should attain 21, and none of them should leave any issue, then the persons in remainder should take; and accordingly the words were, “but if my daughter happen to die without any child, or the youngest of them should not arrive to 21 years, and none of them should have left lawful issue," etc.

But it was objected, I. That the vesting was postponed till after the death of the mother. II. That the words, "but if my daughter happen to die without any child," meant a child living at her death. III. That the time of payment was annexed to the gift, and therefore it was not vested till the time of payment came.

In answer to the first objection it was said, that there was nothing in the first disposition to suggest any such intent, but the words, "and that after her decease they divide," etc. But these words were only consequential upon the gift of the produce to Mrs. Lanove for her life, and did not point out the time when the capital should vest; for if it were otherwise, there never could exist a case, where an interest could vest during the life of the tenant for life, since these words are always used. In personal as well as real estates, where any thing is given to one for life, and from and after his decease to another, both the present and future interest vest at the same time; it is an effect which the law has given to such limitation, and is an established rule of property in England. That to postpone the vesting till the death of the mother, would produce a consequence directly contrary to the will; for it would produce a survivorship among the children after they had attained 21, in case any of them should die above that age without issue; for the testator gave the fund to all the children expressly, when the youngest should attain 21, i.e. when they should all be 21. Therefore every child attaining 21, and in being at the time when the youngest attained that age, should have a share; but if the vesting was postponed till the death of the mother, those who died in her lifetime before the youngest attained 21, would not have any share, but the whole would go to such child or children as should survive the mother, notwithstanding the testator had by express words given it to all who should attain 21.

To the second objection it was answered, that the words used in this sense overturned the former part of the will; for [373] though the testator had directed the fund to be divided among all the children who should attain 21, this sense of the words would make it divisible among such only as should survive the mother; but the natural sense of the words, applied to the case to which they were opposed, was, if Mrs. Lanove should not have a child. The first disposition was to the issue or children; the first alternative therefore was the not having children. The second direction being to divide when the youngest should attain 21; the second alternativo therefore was, if the youngest of them should not attain 21. The last disposition was, that if any of the children should die leaving issue, then to the guardian of the child; and therefore the third alternative was, if none of them should have lawful issue. The will did not take notice that Mrs. Lanove had any child, and therefore the natural sense of the words was consistent with the tenor of the will. But to add the words "living at her death," some intent must be collected from the will, as a ground for it; but all the parts of the