he clearly defined and restricted it in the clause we have been considering, and the rule is that between repugnant clauses in a will the last shall govern. Our former decision must, therefore, stand, with these further reasons for it.

Decree of the Orphans' Court dismissing the petition affirmed, with costs to be paid by the appellants, and their appeal is dismissed. Opinion by AGNEW, C. J. WOODWARD, J.,

Oct. 10, 1878.

Chess's Appeal.
Middleswarth's Estate.

Will-Devise-Legacies, when vested, when contingent-Transmissibility of contingent inte

rest.

A legacy is to be deemed vested or contingent just as the time it is to take effect shall appear to be annexed to the gift or the payment of it. Where there is no substanthe legacy is contingent; provided a contrary intention is tive gift, and it is only implied from the direction to pay, not to be collected from the words or circumstances.

A bequest subject to a contingency which does not affect the capacity of the donee to take is vested, and transmissible to donee's personal representatives.

tence, "but the lands shall remain free for their
children or heirs." Here we have the clue to
the prohibition against alienation and incum-
brance. Why shall they not alien or encumber?
Because, says the testator, my will is the estate
shall remain free (unaffected by their acts) for
their children. It is argued this purpose is de-
fective for grandchildren would not take if a pa-
rent died before the testator. This is against a
settled rule that "children" will include grand-absent.
children when it is necessary to serve the intent
of the testator. (Dickinson v. Lee, 4 Watts, 82;
Pemberton v. Parke, 5 Binney, 601.) Various
readings of the word "children" will be seen in Oct. & Nov. '78, 267.
the citations in Yarnall's Appeal (20 P. F. S.
341). This clause further interprets the word
"heirs." Here "children," the primary word,
precedes "heirs," the secondary, and the latter, as
the alternative of the former, expresses the testa-
tor's own thought. Yet this clause standing alone
might still leave the intention liable to soine con-
test. But it is followed by another part of the
same united sentence, leaving the intent free of
all doubt. Thus, "and they my said children
shall have the use, income, and profit of the said
lands and farms during their lifetime." Here
we have two express declarations of intent:
the subject of his children's devise is clearly
defined, the precise interest of a life-tenant, viz.,
the use, income, and profit of the lands. Thus
the usufructuary interest alone is given, and this
is all a life tenant can take. Not content with
defining the subject, he becomes finally and fully
explicit, and expressly defines the term or dura-
tion of the estate itself, viz., "during their life-
time." Now the full meaning and intent of the
testator is fully developed and clearly expressed.
His own children shall have the use, income,
and profits of the lands devised for life only,
without power to alien or encumber, in order that
these lands shall remain after their death for their
children. Then follows the item next to the last
which confers a power to dispose by will. Here
comes in another thought of the testator, per-
fectly natural and obvious. Remembering that
one daughter is unmarried, and that some of his
married children may die without leaving chil-
dren, or that their children may differ in merits
or be unequally provided for, and that he has
just prohibited his devisees from enjoying more
than a life estate; he thinks of these contingen-
cies, and now gives a power of appointment by
will; and to express this intent more distinctly,
says, "to take effect after their decease." This
is the crowning sheaf of his intention, and shows
that he did not intend to give a fee simple when
he used the word "heirs" in the principal devise
as his own alternative expression for "children"
or possibly with a vague conjecture of its mean-
ing. If he used it in a general way, it is plain

M. devised certain real estate to his son J., directing that in case J. should die without having any legitimate issue, the land should be sold, and after paying certain legacies, the balance should be equally divided amongst all his legitimate grandchildren, born or to be born, share and share alike. J. subsequently died without issue.

Held (affirming the judgment below), that the interest thus given by M. to his grandchildren was a vested interest and transmissible to the representatives of those of the grandchildren who died before his son J.

Per SHARSWOOD, J. The inclination of the Courts is always in favor of the vesting of legacies, because in ninetynine cases out of a hundred, it is the intention of the tesor family of the beneficiary, otherwise, indeed full effect is tator that his bounty should be transmitted to the children not given to it.

Appeal from a decree of the Orphans' Court of Allegheny County, distributing the fund in the hands of John Hickman, administrator de bonis non cum testamento annexo of the estate of Moses Middleswarth, deceased.

Moses Middleswarth, the testator, died in 1842. By his will he devised certain real estate to his son Jonathan, directing that in case his said son should die without leaving any legitimate issue, the land should be sold, and after paying certain legacies, the balance remaining should be

equally divided amongst all my legitimate grandchildren that are now, or may hereafter be born, to share and share alike."

On the assumption that the devise gave him an estate in tail, Jonathan Middleswarth executed an

appropriate deed to bar it, and the land having been reconveyed to him he sold it to one Blackmore. He died in 1869, without issue, never having been married. Letters of administration d. b. n. c. t. a. on the estate of Moses Middleswarth were granted to John Hickman, who instituted an action of ejectment and recovered the land devised to Jonathan. (See Middleswarth's Administrator v. Blackmore, 24 Sm. 414.) The

administrator sold the real estate which was the

subject of the devise in question, and after payment of the specific legacies and expenses there remained for distribution among the grandchildren of the testator the sum of $11,020.

The grandchildren of testator, excluding those who died before his decease, were thirty-eight in number. Of these, twenty-one died before John Middleswarth, the remaining seventeen still sur

vive.

Wm.

The question which is presented for decision upon this appeal is whether the interest thus their representatives on their death before the given to his grandchildren was transmissible to period when the division was to take place.

No doubt it is the general rule that a legacy is to be deemed vested or contingent just as the Upon the audit of the administrator's account, time when it is to take effect shall appear to e the Court (HAWKINS, P. J.) holding that the legacies vested on the death of testator, decreed there is no substantive gift, and it is only implied annexed to the gift or the payment of it. Where accordingly, and distributed the fund equally from the direction to pay the legacy is continamong the living grandchildren and the repre- gent. But this rule is of course subject to the sentatives of the grandchildren deceased. Chess, one of the surviving grandchildren took necessary exception, that a contrary intention is this appeal, assigning for error this decree of the not to be collected from the words or circumstances. In McClure's Appeal (22 P. F. Smith, Court, in awarding any portion of the fund to the representatives of said deceased grandchildren, 414), our late lamented brother WILLIAMS, in instead of distributing the whole fund among an elaborate and exhaustive opinion, has shown the seventeen grandchildren who survived Jonathan rule is not applicable. that there are many cases in which this general Middleswarth, all of whom are still living.

R. B. Carnahan, for appellant.

Where there is no gift but by a direction to pay at a future time or on a given event, the vesting will be postponed till after the time has arrived or the event has happened unless from particular circumstances a contrary intention is to be collected.

Leake v. Robinson, 2 Meriv. 387.
Booth v. Booth, 4 Vesey, 399.

In Chew's Appeal (1 Wright, 23), it was said by Mr. Justice STRONG that "generally a bequest after the death of a particular person to whom an antecedent interest is given in the same will, is held not to denote a condition that the legatee shall survive such a person, not to define when the interest shall vest, but only to mark the time when the gift shall take effect in possession, that possession being deferred merely on account of

2 Williams on Executors, p. 1052, also pp. 1055 to the life interest limited to the person on whose

1059 (3d American edition).

Moore v. Smith, 9 Watts, 403.

Donner's Appeal, 2 W. & S. 372.

Seibert's Appeal, 1 Harris, 501.
Bowman's Appeal, 10 Casey, 19.
M'Clure's Appeal, 22 Sm. 417.
Lamb v. Lamb, 8 Watts, 185.

John D. Shaffer (with him John G. Bryant),

66

death the gift is to take effect." So in McClure's Appeal (supra) Mr. Justice WILLIAMS said: Though there be no other gift than in the direction to pay or distribute in futuro, yet if such gift or distribution appears to be postponed for the convenience of the fund or property, or where the gift is only postponed to let in some other interest, the vesting will not be deferred Whilst the legacies in question were contingent till the period in question." Thus in the comuntil the death of Jonathan, the death of a lega- mon case of a legacy or gift to A. and on his tee did not preclude the possibility of the hap-death to B. no one doubts that both interests, pening of the contingency, and therefore did the present and the future, vest together at the not determine the interest, and such a contin- same instant. gent interest is transmissible to personal representatives upon death.

contra.

I Jarman on Wills, 777, and cases cited; also vol. ii.
pp. 75, 76, 98, 99, and 100.
Winslow v. Goodwin, 7 Metcalf, 363.
Hopkins v. Jones, a Barr, 69.

Attaching a contingency to the gift of the second bequest ought not to and does not affect the case, unless that contingency relates to the capacity of the second legatee or donee to take.

In a legacy to A. and if he dies before attainling the age of twenty-one, then to B., the inte

rest of B. though dependent upon a contingency |
is transmissible. It would be different if the gift
over was to B. at twenty-one, for if he should die
before attaining that age he could never take, and
could therefore have nothing to transmit. It was
in accordance with these principles that the case
of Kelso v. Dickey (7 W. & S. 279) was decided.
There a testatrix bequeathed a legacy to her
daughter under the following contingency: "In
case she dies before the age of twenty-five or with-
out issue born, then to be divided between my
sister and brothers." The daughter died without
issue before she arrived at twenty-five.
It was
held that the legacy was so vested in the sister and
brothers of the testatrix as to be transmissible to
their personal representatives in the event of their
death before the daughter of the testatrix. Mr.
Justice SERGEANT said: "The contingency on
which the legatees over were to take was not a
contingency annexed to their capacity to take;
such for example as their living to a certain
time; but an event independent of them and not
affecting their capacity to take or transmit the
right to their representatives, and such a contin-
gent interest has frequently been decided to be
vested so as to be transmissible to representatives."
To the same effect is Hopkins v. Jones (2 Barr,
69). These cases are in point and rule that
which is before us.

Young v. McIntyre. Partition-Parties to the proceedings-Tenant by the curtesy-Husband and wife—A husband is not entitled to curtesy in his wife's estate in remainder when she dies during the continuance of the particular estate-In such case he is no party to proceedings in partition by the heirs. Rule to set aside order of sale in partition. Partition. The plaintiff and defendants were brother and married sisters, devisees under will of William J. Young, deceased, their father.

The will after bequeathing all testator's estate to his wife and unmarried daughters for the life of the wife, provided "that, at the decease of his wife, all testator's estate should be equally divided amongst his son and daughters, and their heirs forever, the daughters' shares to be free from the control of their husbands, and in case of the death of any child before the wife the issue of such child should take the parent's share."

Testator left a son, the present plaintiff, and three daughters, one of whom, Emma, was married at the time of his death to John Richardson, Had the devise been to Jonathan and on his and this daughter died before testator's wife, leavdeath then to be divided among the grandchil-ing to survive her the husband, but no issue. dren no one could question the transmissibility of their interests. That they were to take only in case he died without legitimate issue, though it made their interest dependent upon a contingency did not change its character in this respect, because it was not a contingency which affected at all their capacity to take. Whenever the contingency happened, if ever it did happen, they would be entitled.

The inclination of the Courts is always in favor of the vesting of legacies, because in ninetynine cases out of a hundred, it is the intention of the testator that his bounty should be transmitted to the children or family of the beneficiary, otherwise, indeed, full effect is not given to it. Decree affirmed, and appeal dismissed at the costs of the appellants.

Opinion by SHARSWOOD, J.

The present rule was obtained by Richardson, on the ground that, as tenant by the curtesy of his wife's estate, he was entitled to be made a party to these proceedings in partition.

F. S. Cantrell, for the rule.

The children. of testator took a vested remainder in fee, subject to a life estate in the mother. At the death of his wife, John Richardson became tenant by the curtesy of her share.

Blackwell v. Cameron, 10 Wr. 236. Proceedings in partition will be set aside unless provision be made for a tenant by the curtesy.

Walton v. Willis, 1 Dallas, 351.

Cote's Appeal, 29 Sm. 235.

C. H. Jones, contra.

The husband cannot be tenant by the curtesy of an estate of which the wife was not actually seized during her life.

Chew v. Commissioners, 5 Rawle, 160.
Shoemaker v. Walker, 2 S. & R. 554.
Hitner v. Ege, 11 H. 305.

In Blackwell v. Cameron, supra, it was held, that a widow was entitled to dower in an estate in remainder when her husband died during the continuance of the particular estate, because her dower was a statutory substitute for dower at common law. But the husband's curtesy is the common law estate of that name.

C. A. V.

Oct. 26, 1878. THE COURT. By the com- | C. P. No. 2.

mon law the seizin of the wife must be an actual McQuigan v. Michael McCarthy and Marseizin or possession to entitle the husband to an

estate as tenant by the curtesy in her lands. Practice-Capias-Arrest of freeholder-Act

Nov. 2, 1878. pounds.

The defendant's property having been levied on and condemned, the plaintiff issued a venditioni exponas to have the same sold; the teste of the vend. ex. was subsequent to that of the writ of error, whereupon the defendant obtained the present rule on the ground that a writ of error was a supersedeas to an execution not completed.

Brightly, for the rule, relied on the Act of June 16th, 1836.

Daly, contra. Where a levy is made under a fi. fa. the execution is so far perfected as not to be superseded by a writ of error.

Patterson v. Juvenal, I Tr. & H. Pr. 688, n. 5.
Bryan v. Comly, 2 Miles, 271.

The execution is entire, and the vend. ex. only issues to complete what the fi. fa. has begun.

Chester v. Peeter, Cro. Eliz. 597.

Tocock v. Honyman, Yelv. 6.
Meriton v. Stevens, Willis, 271.

This is settled by the English cases as regards personalty, and there is no reason for a distinction in regard to realty.

Bozarth v. Marshall, 1 Phila. 172.

Greenough v. Kase. Execution when bail in error not perfected within ten days after exception-Rule V. of the Supreme Court.

Rule for judgment on answers of garnishee in an attachment execution, notwithstanding a writ of error had been taken upon the judgment against defendant.

The plaintiff had a right to take out a writ of error even without entering bail, but it would not have been a supersedeas.

Act of June 16, 1836 (Purd. Dig. p. 605, pl. 16). And with his bail not perfected as required by rule of Supreme Court, the judgment of this Court is a good judgment, and we have a right to issue execution on it.

Henry v. Boyle, 1 Miles 386.

Rheem v. Naugatuck Wheel Co., 9 Cas. 356. Francis E. Brewster and F. Carroll Brewster, contra.

The writ of error having been taken out on the judgment, the record is no longer before this Court, and defendant has no right to issue execution on the judgment. The writ has not been nol. prossed. On the contrary, the bail were approved by the Prothonotary of the Supreme Court.

The executor of decedent's estate presented his petition May 10, 1873, praying for the sale of real estate for the payment of debts. Thereupon, under several orders of sale, all of the real estate, consisting of thirty-six lots of ground, Defendant had taken a writ of error on the judg-was sold, except two lots. On the 24th day of ment against him, and had also entered security. It was certified, however, by the Prothonotary of the Supreme Court, that the defendant had failed to justify his bail within the ten days, as required by Rule V. of the Supreme Court, which provides, inter alia :—

September, 1877, the executor filed his account, which was confirmed in June, 1878, and which showed a balance due the executor of $5674.81.

This balance consisted almost entirely of commissions and salary due the accountant. The account showed that all the debts of the testator had been paid, except a balance, amounting to $4000, of a mortgage given by him in his lifetime, and the above sum due the executor, and some trifling items of indebtedness. These last items have been paid out of rent. received by the