#### DAVID C. GUYTHER & AL. vs. JOSHUA TAYLOR & AL.

A testator, by his last will, bequests among other things, as follows: “It is my will, that my negroes and stock be kept on the plantation, whereon I live, until my son Kinchen attain the age of 21 years. Item — I give to my son Joshua, $100.0, to be raised from the farm. Item — I give and bequeath to my three daughters, Maria A. Guyther, Harnett Jane Taylor, and Charily D: Taylor, and my son Kinchen, to be equalk/ divided between them, my negroes, •when my son Kinchen arrives to the age of 21 years. Item — It is my will that the residue of my estate of every description, belong to my son Kinchen Taylor.” Held, that the three daughters and the son took vested and equal interests under the bequest of the negroes.

In construing a bequest, there is a leaning always in the court towards vesting, if the expressions be ambiguous, and the intention doubtful.

In respect to gifts of personal estate by will, the laiv is, that the word when, is a word of condition, and imports, that the time “ when” the legatee is to receive the bounty, is of the essence of the donation, unless there he some other expression to explain it, or some provision in the context to control it.

A direction in the will, malting a disposition of the property until the time specified, is such a provision as will control the general rule. So, also, the expression in the will, “ to be equally divided between them,” is equivalent to the expression, “ payable,” or “ to be paid,” in explaining the words “ when,” &c.

The case of Giles v. Franks, 2 Dev. Eq. 541, cited and approved'.

Cause removed from the Court of Equity of Martin County, at the Fall Term, 1844, having been first set for hearing.

The following facts appear from the pleadings :

Kinchen Taylor, the elder, made his will, November 6th,

1836, and therein devised and bequeathed as follows :

“ It is my will, that my negroes and stock shall be kept on' the plantation, whereon I live, until my son Kinchen attain the age of 21 years.

“ I give to my two daughters, Harriet Jane Taylor and Charity D. Taylor, my piney vvoods tract of land, containing'

776 acres.

“1 give to my son Joshua, $1000, to be raised from the farin'.

“ 1 give to my son, Kinchen, the house and plantation, *324whereon 1 now live, and the rest of my landed estate.

“I give to my grandson, John M. Guyther, one negro boy, named Bob.

“I give and bequeath to my three daughters, Maria A. Guytherj Harriet Jane Taylor, and Charity D. Taylor, and my son Kinchen, to be equally divided between them, my negroes, when my son Kinchen arrives to the age of 21 years.

“It is my will, that the residue of my estate of every description, belong to my son Kinchen Taylor.

“Lastly. I nominate my son Joshua, and David C. Guyther, my executors, and authorize them to keep the negroes and stock on this my mansion plantation, in such manner as they may think best for my heirs.”

By a codicil, dated the 1st of January, 1837, the testator directs that his three younger children, Harriett Jane, Charity D. aud Kinchen, should be handsomely supported by the executors, out of his estate; and he gives to his daughter, Eve-line B. Jones, five dollars.

Joshua Taylor, alone, took probate of the will, and in 1S39 á bill was filed against him by the other children,except Mrs. Jones, upon the grounds of his mismanagement of the estate, and apprehended insolvency, upon which a receiver was appointed, in whose hands the estate has ever since been, under the direction of the court. It appears that the profits of the plantation, on which the testator resided, and on which his slaves have been kept and worked, since his death, have not been sufficient to educate and maintain the three younger children, and discharge the legacy of $1000, charged thereon in favor of Joshua Taylor, the executor, but a balance is still due to him.

On the 27th of April, 1844, Kinchen Taylor, the son, arrived at full age, and the daughter, Charity D., was then living, she having intermarried with William T. Powell. Before that daj', however, Mrs. Guyther had died, and her husband, David C. Guyther, administered on her estate, and Harriet Jane had also died, having previously married John H. Dawson, who administered on her estate. Upon the arrival of *325Kinchen Taylor, the younger, at full age, the parties severally illed petitions in the cause for a division of the slaves ; Guyther and Dawson, as administrators respectively of their wives, claiming that they were entitled to one-fourth each, as a vested interest in their wives; and Powell and wife, insisting that the gift was contingent to those who might ’ be alive when Kinchen came of age, and claiming that the whole was to be equally divided between those, who should then be living, and therefore, that Mrs. Powell is entitled to one half, and Kinchen Taylor to the other; while Kinchen Taylor insisting, also, that the gift was contingent, as above, insists further, that neither of the donees can claim more than an equal share or fourth part of the slaves, by virtue of the clause, in which the slaves are particularly given, and, therefore, he claims that the shares, which have fallen in by the death of Mrs. Guyther and Mrs. Dawson, belong to him as residuary legatee.

Badger and Whitaker for the plaintiffs.

J H. Bryan for the defendants, K. and J. Taylor :

The legacy to his three daughters, Maria, Harriet, Charity, and his son Kinchen, is a contingent legacy. When, is a word of condition, and is here annexed to the gift of the corpus of the legacy. In such cases, the legacy does not vest until the designated time, unless the context of the will requires a different construction. 1 Rop. Leg. 385-6. Hanson v. Graham, 6 Yes. 239. Giles v. Franks, 2 Dev. Eq. 521.

Here the gift is in the direction for payment, and interest is not given in the mean time, but maintenance, which may be more or less than the interest. The maintenance too, is given out of an aggregate and mixed fund, of which the legacy of the negroes constitutes but a part. This fund is regarded as aggregate, until the youngest child comes of age, and it then loses its aggregate character, and is to be equally divided; so that this legacy is not separated from the mass of the estate, (real and personal) until the youngest child comes of age. The case therefore differs essentially from that class of cases where the legacy is held to be vested on account of the inter*326est being given in the meantime, Batsford v, Kim bell, 3 Ves. Jr. 362. Hanson v. Graham, 6 Ves. 239. Anderson ‘ V. Felton, 1 Ired. Eq. 55.

The court will always regard the “ plan of the will” as tending much to explain the testator’s intention in any particular clause , and in this will he has repeated, no less than three times, his wish, that his estate should be kept together for the support of his children, and should be managed by his executors, in such manner as they should deem best for the heirs, thus obviously regarding his whole estate as an undivided mass, in which no legatee had a vested interest, until the time of division.

Joshua Taylor’s legacy is charged upon the farm, and having applied the whole of its proceeds to the maintenance of the children, he is obviously entitled to indemnity, upon the principles of this court, or he might hold on to the property until he was reimbursed.

Ruffin, O. J.

The rights of the parties depend upon the question, whether the gift of the negroes was contingent. If the will gives a vested interest, then each of the four childrc n was entitled to a share, and the shares of those dying before Kinchen came of age, were transmissible to their representatives. It is insisted, that this was a contingent gift, chiefly on the strength of the word when ; which, it is said, as the clause is framed, refers to the gift, and not to the division of the negroes. It is no doubt the law, in respect to gifts of personal estate by will, that the word “when,” like “at” or “if,” is a word of condition, and imports, that the time “when” the legatee is to receive the bounty, is of the essence of the donation, Giles v. Franks, 2 Dev. Eq. 541, unless there be some other expression to explain it, or some provision in the context to control it. It is well settled, for example, that, if there be a gift of a sum of money “to be paid” to “A,” oí a particular ppriod, or when B. shall come of age, the words “ to be paid,” control the expressions of contingency, by shewing that they were not used in that sense, but only to mark the period, at *327which the enjoyment would begin. The same effect, it would seem, must be allowed to the words of this will, “ equally to be divided between them,” provided when is to be referred to these latter words, as denoting the time merely, at which the testator intended each child to have his or her share in severalty, and not to the words, “I give and bequeath,” in the previous part of the sentence, so as to denote an intention, that the gift itself was made only when the son should come of age. We do not perceive a distinction, to this purpose, between “equally to be divided,” and “tobe be paid” or “payable.” But upon the clause of this will, by itself, it is really not easy to say, to which the testator meant to refer the time, the gift, or the division. The sentence is not only ungrammatical, but is inaccurately and clumsily expressed. The ambiguity arises from the position in the sentence of the subject of the gift, “my negroes”; and it seems impossible to speak with any certainty as to the intention on this point, looking only at the words here used. But there is a leaning always in the court, towards vesting, if the expressions be ambiguous, and the intention doubtful. Stuart v. Bruer, 6 Ves. 529. Sitwell v. Bernard, 6 Ves. 522.

There are also other provisions in the will, and other considerations, which strike us as fortifying the construction, that these are vested interests. In the first place, there is an apparent intention to put all four of these children upon an equality in respect of the negroes. They are to be equally divided between them. Now, it seems difficult to suppose, that the testator meant the legacy of Mrs. Guyther to fail by her death, and, indeed, that he did not mean the contrary, as she was then married and had at least one son, to whom his grandfather gives a negro. If the words were clear, it is true that circumstance could not control them; but, upon an ambiguous sentence, it is quite material to aid in fixing upon the one intention or the other. With respect to his unmarried children, he might not have adverted to the probability of their marriage, having issue, and dying before Kinchen came of age. But he could have hardly overlooked the probability of Mrs. *328Guyther’s death, before that event, and leaving a child or or have intended, in case she should, that her family should be altogether unprovided for. But when it is observ- ° r ed, that the gift of the negroes is not to the four children jointly, nor by a general description, under which such of them, as should be living when Kinchen came of age, would be entitled to take the whole, but is to the four, nominatim, equally to be divided between them, so that, in no event, could any one of them receive more than a share, viz: one fourth, under that clause, (Johnson v. Johnson, decided at this term) the reasons for holding the legacies to be vested, become much stronger. For the effect of holding otherwise, would be to entitle Kinchen, by virtue of the gift of the residue, to the shares of those thus dying; which would be in opposition to the apparent equality intended between him and his sisters, at least as to this fund. But that is not all. The construction would produce this absurdity: that, if Kinchen should die while an infant, then his own share of the negroes, which, upon the argument for him, the testator intended should be contingent, and not belong to him unless he lived to be 21, would nevertheless fall into the residue, and, as to that no contingency is annexed, would in that form be a vested interest. That would render the gift of Kinehen’s fourth part of the negroes, at one and the same time, by one clause in the- will contingent, and by another clause, vested j which cannot be supposed. He clearly has a vested interest by virtue of the gift of the residue, and, therefore, it must be taken — to avoid the absurdity pointed out — that the testator intended, that he should have a vested interest by the clause giving the negroes specifically; and if, by that, he acquired such an interest, then the others must, by the same clause, have a vested interest also; for, in that part of his will, the testator puts the four on the same footing precisely. To those considerations, arising out of the particular provisions of the will, is to be added another important one; which is, that the testator disposes of his negroes until the period at which they are to be divided, and, consequently, the whole subject, corpus, is given away for different purposes; *329so that the interests given to the children are in the nature of remainders, and the term “when,” though generally a word condition, marks in this case only the commencement of the remainder. The cases upon the subject are collected and well explained by Mr. Roper in his Treatise on the law of Legacies, 1 vol. 392. Here, besides maintaining the children, the sum off1000 was to be raised for Joshua Taylor; and, that the testator judged rightly, that it would require at least the whole period to raise that sum out of the profits of the estate, is proved by the event. It is not yet all raised; and we may therefore fairly presume, that the solo purpose, in not directing an immediate division of the negroes among the four donees, was, by keeping them together, to raise the pecuniary legacy to Joshua, after maintainance to the children; and, if so, the rule is to consider the gift to be immediate, though, being in the nature of a remainder, it is not to be enjoyed until a particular period; by which time the testator expected the purpose he had in view would be effected. Upon the whole, therefore, we are of opinion, that we shall best effectuate the testator’s intention, though very obscurely expressed, by holding these to be vested interests, and, consequently that each of the children, or their respective administrators, is entitled to one fourth part. The decree must be, therefore, that the balance due to Joshua Taylor for his legacy, and the expenses of the estate, including the costs of this suit, be raised out of the negroes, and those that may remain, be divided as here directed.

Pee Curiam, Decreed accordingly.