Hopkins v. Jones

• Decision Date: 26 December 1845
• Citation: 2 Pa. 69
• Parties: HOPKINS <I>v.</I> JONES.
• Court: Pennsylvania Supreme Court

2 Pa. 69

HOPKINS v. JONES.

Supreme Court of Pennsylvania.

December 19, 1845.

December 26, 1845.

Dec. 19.

ERROR to the District Court of the city and county of Philadelphia.

Hopkins and Newcombe, for appellant.—Time not being of the substance of the gift, the legacy is vested. Then refers to the event of no issue, not to time.

The gift of interest and principal may be distinct, and yet both vest. Monkhouse v. Home, 1 B. C. C. 298. [Sergeant, J. — The event was certain.] Pinbury v. Elkin, 1 P. Wms. 563, was on an uncertain event. Patterson v. Hawthorne, 12 Serg. & Rawle, 112. The contingency would have operated to divest the gift.

Gerhard, for defendant.—The case is governed by Ring v. Ring, 1 Watts & Serg. 205; Caudler v. Dinkle, 4 Watts, 143. It being after indefinite failure of issue, it is void, Beauclerk v. Dormer, 2 Atk. 311; or it comes within the distinctions taken in Fearne Cont. Rem. 553n., of separate devises of principal and interest. Clowberry's case, 2 Vent. 342; Billingsley v. Wills, 3 Atk. 219, 3 Ves. 362.

Dec. 26. SERGEANT, J.

There is no contingency here that affects the transmissibility. There is a contingency, which affects the right of Rebecca J. Rutter ever to take, but none that affects the vesting of her right or possibility, so as to pass to her representatives on her death, before the contingency happens. The rule on this subject is recognised by this court in Kelso v. Dicky, 7 Watts & Serg. 279, which in effect decides the present case, that is to say, in case of contingent executory bequests, the interests of the first and subsequent takers, quodum modo vests eo instanti; so that if the substituted legatee die before the contingency happens, upon which he is to succeed to the legacy, his representative will, notwithstanding, be entitled to it so soon as the event shall take place. Suppose, then, a bequest be made to A., but if A. died under twenty-one, or without leaving children or issue, to B.; although B. happened to die before A., B.'s personal representative would be entitled to receive the legacy upon the happening of the contingency, on the ground of its being a vested right in B. previously to his decease. 1 Roper on Leg. 401. The present seems to be in effect the case put. The words "die without lawful issue," are to be construed, in case of personal estate, to mean "die without leaving lawful issue," when that corresponds with the testator's intent. Pinbury v. Elkin, 1 P. Wms. 563. In that case, the corpus...