In re Will of Zophar M. Mansur

Decision Date08 January 1925
Citation127 A. 297,98 Vt. 296
CourtVermont Supreme Court

November Term, 1924.

APPEAL direct to Supreme Court from decree of probate court for the district of Orleans dismissing petition of deceased legatee's administrator, for distribution of the assets of testator's estate. The opinion states the case. Reversed and remanded with instructions.

Decree of the probate court reversed and cause remanded for further proceedings and decree not inconsistent with the views herein expressed. Let the appellant recover his costs in this Court. To be certified to the probate court.

Stickney Sargent & Skeels, and J. Dwight Dana (New Haven, Connecticut), for the petitioner and appellant.

Hamilton S. Peck and John W. Redmond for appellee.



This is an appeal from a decree of the probate court within and for the probate district of Orleans dismissing a petition brought by appellant, as administrator of the estate of Sallie Storrs Tate, for the purpose of affecting a final settlement, and distribution of the assets, of the estate of the late Zophar M. Mansur, on the ground that appellant, as such administrator, has no interest in the Mansur estate because the legacy bequeathed to the said Sallie by the said Mansur did not vest in the legatee, but lapsed at her death.

The agreed facts in the case, so far as material to the question before us, are these: Zophar M. Mansur died March 28, 1914. He was survived by one son, Arthur G., and two grandchildren John D. Storrs and Sallie L. Storrs, children of a daughter who died December 1, 1911. Mr. Mansur left a will bearing date of January 15, 1914, which was allowed by the probate court in said district April 21, 1914, which contained the following provision: "I give to my grand-daughter, Sallie L. Storrs, the sum of thirty thousand dollars, to be placed in the hands of a trustee, the income thereof to be paid to the said Sallie L. Storrs semi-annually, one half of the principal to be paid to the said Sallie L. Storrs when she shall become thirty years of age and the remaining one-half when she shall become thirty-five years of age." It contained a like provision for the grandson, John D. Storrs. The granddaughter, Sallie L., was born November 18, 1894, she married the appellant August 4, 1920, and died, intestate, November 23, 1921. She was survived by one daughter, the fruit of said marriage, born October 29, 1921, who is still living. The appellant is the duly appointed administrator of Sallie's estate. Mr. Mansur's son, Arthur G., is executor of the Mansur will and, as such, has in his hands a large amount of property that belongs to the Mansur estate. No part of the legacy bequeathed to the said Sallie has ever been paid.

Whether the court erred in dismissing the petition depends, entirely, upon whether the provision in the Mansur will, above quoted, created a vested or a contingent legacy, and this, in turn, depends upon whether the contingency, namely, the attainment of a certain age by the legatee, attached to the substance of the gift or to the time of payment thereof.

In construing wills, the first and chief object is to ascertain the intention of the testator, since, so far as it may be legally carried out, that governs. Harris et al. v. Harris' Estate, 82 Vt. 199, 72 A. 912. To aid in ascertaining this fact certain well-recognized rules have been established. One is that the law favors the vesting of estates on the death of the testator when the will becomes operative, and if the language used is consistent with an intention to postpone the enjoyment only, such will be presumed to have been the testator's intention. This presumption is so favorably regarded that no estate will be held contingent unless positive terms are employed in the will indicating that such is the intention. In re Robinson's Estate, 90 Vt. 328, 98 A. 826; Harris et al. v. Harris' Estate, supra; Burton v. Provost, 75 Vt. 199, 54 A. 189; Jones, Admr. v. Knappen, 63 Vt. 391, 22 A. 630, 14 L. R. A. 293; In re Tucker's Will, 63 Vt. 104, 21 A. 272, 25 A. S. R. 743; Weatherhead v. Stoddard, 58 Vt. 623, 5 A. 517, 56 A. R. 573. Another rule is that when futurity is annexed to the substance of the gift, the vesting is postponed; but if annexed to the time of payment only, the legacy vests immediately. Perhaps this rule is nowhere better stated than by Blackstone; he says: "And if a contingent legacy be left to anyone, as when he attains, or if he attains, the age of twenty-one, and he dies before that time, it is a lapsed legacy. But a legacy to one to be paid when he attains the age of twenty-one years, is a vested legacy; an interest which commences in praesenti, although it be solvendum in futuro, and if the legatee dies before that age, his representatives shall receive it out of the testator's personal estate, at the same time it would have become payable in case the legatee had lived." 2 Bl. Comm. 513. See also 2 Williams on Executors (11th ed.), 973. In the first instance, futurity being annexed to the substance of the gift, the vesting is postponed; in the latter instance, futurity being annexed to the time of enjoyment only, the legacy vests immediately. Regardless of its origin, or the reason for its adoption, this rule is now recognized by the great weight of authority both in this country and in England.

Among the numerous cases where the language of the bequest is held to affect a postponement of payment or enjoyment only--the legacy vesting immediately upon the death of the testator--are, Staples v. D'Wolf, 8 R.I. 74; Dale v. White, 33 Conn. 294; Austin v. Bristol, 40 Conn. 120, 16 A. R. 23, Harrison v. Moore, 64 Conn. 344, 30 A. 55; Brown v. Brown, 44 N.H. 281; Sanborn v. Clough, 64 N.H. 315, 10 A. 678; Zartman v. Ditmars, 37 A.D. 173, 55 N.Y.S. 908; Goebel v. Wolf, 113 N.Y. 405, 21 N.E. 388, 10 A. S. R. 464; Williams v. Boul, 101 A.D. 593, 92 N.Y.S. 177; Id., 184 N.Y. 605, 77 N.E. 1198; Kimble v. White, 50 N.J.Eq. 28, 24 A. 400; Furness v. Fox, 55 Mass. 134, 1 Cush. 134, 48 Am. Dec. 593; Eldridge v. Eldridge, 63 Mass. 516, 9 Cush. 516; Wardwell v. Hale, 161 Mass. 396, 37 N.E. 196, 42 A. S. R. 413; Kerlin v. Bull, 1 U.S. 175, 1 L.Ed. 88; Cropley v. Cooper, 86 U.S. 167, 19 Wall. 167, 22 L.Ed. 109; McArthur v. Scott, 113 U.S. 340, 28 L.Ed. 1015, 5 S.Ct. 652; Goodlittle v. Whitby, 1 Burr 228; Lyman v. Vanderspiegel, 1 Aik. 275; Boraston's Case, 3 Coke 19. See, also, Warren's Admr. v. Bronson, 81 Vt. 121, 133, 69 A. 655; In re Robinson's Estate, 90 Vt. 328, 98 A. 826; and note Goebel v. Wolf, supra.

In Staples v. D'Wolf it is said: "The question is always--is futurity annexed to the substance of the gift? If so, the vesting is postponed; or is it annexed to the time of payment only? If so, the legacy vests immediately. 1 Jarman, 759, 760. And if the gift be expressly to A, and expressed to be payable or to be paid at a certain time, time is held to relate to the payment only, and not to the gift itself, and it confers a vested interest on the testator's death."

In Brown v. Brown, where the language of the bequest was, "I do give and bequeath to Hiram S. Brown * * * the sum of $ 1,200, to be paid to him by the executor of my said will, when he shall attain the age of 21 years," it was held, Hiram having survived the testator but died before reaching the age of 21 years, that the gift vested in him and was payable to his representative. The court said: "Where the gift is of a sum of money to the legatee payable,' or to be paid' at the age of twenty-one, the legacy vests immediately, and, upon the legatee's death before that age, goes to his representative; and this is upon the ground that the testator intended the gift to be absolute, but chose to postpone the payment to the period when the legatee might make better use of his bounty. This distinction is established by a weight of authority too great to be shaken, and it may well be supposed that wills are made with reference to it."

In Dale v. White, it is said: "It is a well-settled rule of construction that a legacy...

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