Edwakds, for Appellant., Hayden, for Appellee.

Jstaptoit.

<p>APPEAL FROM LAFAYETTE CIRCUIT COURT.</p> <p>Tbe facts of tbis case as presented by tbe record and agreed by tbe parties are as follows, to-wit: On the 11th day of August, in the year of our Lord 1843, tbe said Jolm Taylor made and published bis last will and testament, and within a short time thereafter, died. The provisions of his will in the construction of which the several questions involved in the cause arise, are these : “ Section 7. I leave and bequeath to my grandson, John Hill, the west half of the northeast quarter of section twenty-seven, township fifty-one, range twen-' ty-nine ; also one negro boy, named Clark (son of Nell), to be given into his possession when he arrives at the age of twenty-one years, to him and his heirs forever. Section 9. I will that ail my personal property, of every kind, not otherwise disposed of, be sold as soon as practicable after my death, on a credit of twelve months, my executor taking bond and approved security ; and from the proceeds thereof and the money in hand at my death, I desire that all my jnst debts be paid, and the balance, if any, to be equally divided amongst my children, and grandchildren, each grandchild drawing their equal proportion of what their ancestor would have drawn had they have lived. “Section 11. There are yet three negroes .not disposed of, to-wit: James, Nell and Tom. It is my will that they he hired hy my executor, in the county of Ray, either at public auction or privately, as my executor may think most advisable, every year from my death, until my grandson, John Hill, comes to the age of twenty-one. years old; then it is my will that they he sold, and they are to be permitted to choose any master who will give the appraised value of them on that day, if any be there, and if not they are to be sold to the highest bidder, and the proceeds arising from such sale to be equally divided amongst my children and grandchildren as before directed in the 9th article of this will.”</p> <p>The testator in his life-time had issue five children, of whom three, to-wit: Edmund B. Taylor, Obadiah Taylor and Nancy Peak, were living at the time of the death of the testator, and two, to-wit: Lydia Hill and Winney Bright died in the life-time of the testator. The said Lydia had been twice married, first to one Gourd, by whom she had issue, Zerilda Spencer and Rebecca Gourd, both mentioned in the will; and secondly, to the plaintiff below, Ephraim Hill, by whom she had issue, the plaintiff below, Nancy Oates, wife of the plaintiff below, William Oates and John Hill, mentioned in the foregoing provisions of the will, all four of whom were living at the time of the testator’s death. The said John Hill afterwards died an infant and intestate, having survived the said Rebecca Gourd who had died without issue. If the said John Hill had continued to live he would not be twenty-one years old until the first day of January, in the year of our Lord 1854.- The said Winney Bright, left issue, Jefferson Bright, Rebecca Bright and Sarah Bright, who were living at the time of the testator’s death, and are all mentioned in the will. The said Jefferson Bright is still living, and the said Reuben Bright and Sarah Bright have both died since the death of the testator. Since the death of the testator, and before the commencement of this suit, the said Edmund B. Taylor and Obadiah Taylor have both died, severally leaving issue who are yet living. The said Ephraim Hill is the father, and the other plaintiffs below and Zerilda Spencer are the remaining legal representatives of the said John Hill.</p> <p>The said Nancy Oates, formerly Nancy Hill, has intermarried with the said William Oates since the death of the testator. The said Nancy Peak is still living. The several slaves mentioned in the 7th and 11th sections of the will • are yet living ; and the said Nell has had three children since the death of the testator who are likewise still living. All of said slaves are under the direction and control of the defendant below, as executor aforesaid.</p> <p>The plaintiffs below at the legal representatives of the said John Hill, instituted this proceeding in the County Court of Ray county, and that court upon the hearing of the cause, made an order directing and requiring the defendant below, as executor of said will and testament to deliver ujj to the plaintiffs below, as the legal representatives aforesaid, the negro slave Clark, mentioned in the 17th section of said will, and also to proceed to the immediate •sale of the slaves, James, Nell and Tom, mentioned in the said 11th section, and 4o divide the proceeds of such sale, together with the proceeds of their hire, among the children and grandchildren of the testator, in the proportions prescribed in the 9th section. From this order the plaintiff in error appealed to the Circuit Court of the same county ; and afterwards a change of venue was awarded to the Circuit Court of Lafayette county. .</p> <p>Upon the trial of the cause in the latter court all objection to the parties, to the suit, to the form thereof and to the manner of proceeding therein up to that time were mutually waived and abandoned. It was also then agreed that all the parties in interest had been duly notified of the application. It was also then agreed that the cause should be prosecuted for the purpose of judicially ascertaining and fixing the bequests, rights and interests of the plaintiffs below under the said will, and the time when payment, apportionments^ possession and distribution of the same ought to be made by the said executor. The will, which is copied in the record was admitted and read in evidence. Upon this state of case the defendant below, by his counsel, prayed the court to declare the law of said cause to be as follows, to-wit: 1. That although the bequest made to John Hill, hy the 7th section of the will in question may have vested in him at the death of the testator, and is therefore transmissible to the legal representatives of such legatee, yet such representatives are not entitled to the possession of such bequest until the arrival of the time at which the said John Hill would be twenty-one years old, if living. 2. That the 11th section of said will passed no substantive bequest to the said John Hill, claimants under that section connected with the 9th, to which it refers, can only prevail under the direction of the will to divide among the children and grandchildren of the testator. These sections describe certain classes of persons, to-wit: the children and grandchildren of the testator, among whom the proceeds of the sale of the three slaves, mentioned in said 11th section are to be divided by the executor after said Hill should attain the age of twenty-one years. The legal instrument of the testator is, that his children and grandchildren, living at the time at which such division is directed to be made, shall take to the exclusion of all others. John Hill having died before such time, his representatives can take nothing under these sections. 8. That although there may have been a bequest to the said John Hill, under the said last mentioned sections of said will, yet such bequest was contingent and lapsed by the death of such legatee before the time of vesting had arrived. 4. That the representatives of the said John Hill, have no right to claim or require a sale of said three negroes, nor a division of the proceeds of such sale, before the time comes at which the said John would be twenty-one years old, if living. 5. That the proceeds of the hire of the slaves James, Nell and Tom, mentioned in the 11th section of the said will, occurring since the death of the testator, are not disposed of by the said will. The court refused to make these several declarations of law in the cause, and each of them ; and thereupon the defendant below excepted.</p> <p>The court then declared the law of the cause, arising from the facts aforesaid, to be for the plaintiffs below,'and proceeded to make and render the final order and judgment upon the record, to which the defendant below also excepted. The defendant below then moved for a new trial, which was refused. To the overruling of the said motion the defendant excepted. The cause is in this court by appeal.</p> <p>1. Under the 11th section of the will, connected with the 9th, to which it refers, there is no substantive bequest to John Hill, the intestate of the plaintiffs below. If he were still living, and the time for final disposition of the property in question had come, he could only claim under the direction of the executor contained in the will, to make payment or division among the children and grandchildren of the testator. There are two classes of persons, or as the old lawyers phrase it nomina col-lectiva, within one of which the claimant must bring himself before he can take a dividend. 4 Bac. Abr. 394, 395, 396 ; Botsford v. Kebbell, 3 Yes. jr., 363 ; Sansbury v. Read, 13 Ves. jr., 75. It is conceded that where the testator gives legacies to his children and grandchildren generally, these descriptions apply to those in esse at the time of the making of the will. 4 Bac. Abr. 341. It is also conceded that where there is no bequest of a sum generally to be divided among a class of persons, those of such class who are in being at the death of the testator, shall take. 4 Bac. Abr. 342. But where a testator gives a legacy to any one not as a persona designata, but under a qualification or description at any particular time, the person answering such description at that time is the person to claim. And where a fond is directed to be divided at any future time among a class of persons, those of such class who are in esse at the time such division is directed to be made, take to the exclusion of the representatives of such as are deceased, and all others. Pemberton v. Park, 5 Binn. 607; Lamb v. Lamb, 8 Watts, 184; Moore v. Smith, 9 Watts, 403; Gregg v. Bethea, 6 Port. R. 9. 2. If the testator, by these sections, meant children and grandchildren living at the date of his will or at the time of his decease, and there was a substantive bequest to the intestate of the plaintiffs below, then it is submitted that such bequest was contingent and has lapsed by his death before the time of vesting either in possession or interest. Toller’s Law of Executors, 804 ; 4 Bac. Abr. 893, 394, 395, 396, 401; 2 Williams on Executors, 886 ; 3 Yes. jr., 362 ; 1 Roper on Legacies, 583. 3. If the will passed a legacy, whether vested or contingent to the intestate of the plaintiffs below, then it is argued, that his representatives cannot claim the possession or payment of such legacy, before the time at which he would have been twenty-one years old if living; and this proposition embraces the provision of the seventh as well as of the eleventh section. 4 Bac. Abr. 434 (6 Bac. Abr. by Bouvier, 312, 313); 1 Chit. Blacks. 430-1; 2 Mad. Ch. Pr. 13, 14 ; 2 P. Williams, 335, 478 ; Fonb. Eq. 602 note; 2 Williams on Executors, 881; 2 Toll. Law of Executors, 313. 4. The proceeds of the hire of the slaves in question, are not disposed of by the will. They belong to the executor, either beneficially or in trust for the next of the kin of the testator. He is not authorized to dispose of the proceeds of such hire with the proceeds of the sale which he is directed to make. Toll. Law of Executors, 351 and following ; 6 Bac. Abr. Bouvier, 302 and following ; 1 Chit. Blacks. 434 and note, (46); 2 P. Williams, 337. 5. The whole will evinces that the testator postponed the time of distribution of his estate in view of its condition, and for its accumulation under the management of his executor, and not in reference to the condition of the legatees, or any of them.</p> <p>1. Immediately upon the death of the testator, John Taylor, his grandson, John Hill, became entitled to the slave, Clark, and other property mentioned in the 7th article of the will of the said John Taylor; and to an undivided and vested interest, as a grandchild of the testator, in the property specified in the 11th article or section of said will; and upon the death of him, the said John Hill, his legal representatives became entitled to the same. As to vested legacies, see 1 Roper on Legacies, eh. 10, § 2, pp. 876, 377 and following, and notes of reference there ; 3 Yes, 10,16 ; 1 Bur. 228, 232 ; 6 Bac. Abr. 264, rule 2nd ; 216, 0,1,2, pp. 315, 316, 241, 312, 317 (Bouvier’s ed). See 4 Bac. Abr. (Wilson’s ed.) 393, letter E, § 2, 394 and following; title Legacies, as to whom legacies payable at a future time shall be said to be vested or lapsed, the legatee dying before the time of the payment. As to the description of legatees, seel Roper on Legacies, ch. 2, § 1, pp. 45, 46, 47, 48, 49, 50, &c., and authorities there referred to. Of legacies upon condition, see 1 Roper on Legacies, .499 to 513 and following. 2. That the provisions in the 7th and 11th articles or sections of the will, fixing the majority of John Hill as the point of time at which he was to receive the possession of the property mentioned therein, and for the sale and division of the property mentioned in the 11th section of the will amongst his children and grandchildren, as specified in the 9th article of it, was evidently made and designed by the testator for the benefit of John Hill, and for the security of the estate there given him, to be managed and. enjoyed at a time when, from the maturity of his age, he would be capable of' preserving and increasing it; and that, therefore, there is no reason now existing why his legal representatives should not have the possession and enjoyment of the property, &c., bequeathed him in the will. The rule in equity as to the time of payment of a legacy, is that if the legacy draw interest, or if the payment of it be delayed until the majority of the legatee, or until some fixed point ortime after the death of the testator, on account of, and for the interest and benefit of such minor, and not on account of or for the reason that, in the judgment of the testator, his estate could not bear the payment of it earlier; then, although the legatee should die whilst a minor, or before the time fixed for the payment of it, his legal representatives become entitled to the possession and present enjoyment of the legacies at the time of his death; and the Circuit Court very ■ properly ordered and decided a distribution of the same amongst the plaintiffs below. As to what time legacies are to be paid, see 4 Bac. Abr. 434, 435, Wilson’s ed.; 1 Strange, 238; Ambl. 588 ; Green v. Pigot, 1 Brown’s Ch. R. 105, 106, side paging ; 2 Verm. 431; 3 Yesey, 16, Cricket v. Dolby ; 2 Yerm. 430, Phillips v. Phillips.</p>