in possession or vesting indefeasibly. In that case the question arose whether the gift to grandchildren in the seventh paragraph of the will was too remote. That depended upon whether it was contingent upon the grandchildren attaining thirty, or vested, subject to a postponed enjoyment till that time. The court was clear that by the principal clause of the seventh paragraph the grandchildren took a vested interest, when born. The gift after the death of the son, the life tenant, did not make the original gift contingent, since the payment at a future time had reference to the position of the estate, i. e., the postponement was for the convenience of the estate.9 There was, then, here a direct gift at the death of the tenant for life, with a subsequent direction as to vesting at thirty. There was much in this situation alone to warrant the court in hold 7 In the same way the use of the word "vest" in Lunt v. Lunt, 108 Ill. 307, as indicating the time when the property should vest in possession and indefeasibly in the testator's children, must be regard ed as depending upon the effect of the gift over, (post, § 220), which the court regarded as sufficient to make the gift vested in interest on the testator's death in spite of some other expressions pointing to a different conclusion. 8 This was, in part, in the following language: "I hereby give, devise and bequeath the fee simple title of all my lands, lots and real estate, wherever situated, together with all my personal property of every name, grade or description, to my grandchildren, whatsoever number they may be, born to my said son, Alexander M. Cheney, share and share alike, to take possession only after the death of my said son. [Here followed the gift of a life estate to the son Alexander M. Cheney, and the paragraph concluded:] Provided always, and the foregoing devise of the fee simple ing that vesting referred to indefeasible vesting or vesting in possession.10 But there was more than this. The interest which it was expressly provided the grandchildren should not take unless they lived to reach the age of thirty years, was "an interest or any estate of inheritance." This language would seem irresistibly to mean an indefeasible interest when it is observed that there was a gift over "in the event that any such grandchild shall die before attaining the age of thirty years, leaving a child or children," to the child or children of such grandchild. The clause, "In the event that any such grandchild shall die before attaining the age of thirty years, he, she or they shall take nothing under the provisions of this will, neither shall any interest in any of my said real or personal estate be thereby vested in any person or persons through devise, inheritance or otherwise,' was, considering the provisions regarding the testator's son, very sensibly interpreted to express an attempt to guard against the son's inheriting by the death of a grandchild under thirty. It did not, in the face of the other clauses of paragraph seven make the gift to the grandchildren contingent.11 § 210. Where there is no express direction as to vesting(1) Where there is a direct gift, an additional direction to pay at a future time will not postpone the vesting: The legacy in such a case vests at the death of the testator with a postponed enjoyment until the period prescribed. If, for instance, a legacy be bequeathed to A "to be paid at twentyone," the words "to be paid" cause the gift to be construed to take effect at once with merely a postponed enjoyment. The legacy is, therefore, vested immediately upon the testator's death.12 This follows the well settled rule of the English cases.13 10 Theobald on Wills, 2nd (ed.) p. 209. 11 So much has been said in support of the conclusion reached in this case, because there has appeared a confident assertion in the notes on Recent Cases, 15 Harvard Law Review 496, that the construction placed upon the will incorrect-that the grandchildren took a contingent interest. was 12 Ruffin v. Farmer, 72 Ill. 615. See also Sheets v. Wetsel, 39 Ill. App. 600; Bowerman v. Sessel, 191 Ill. 651; Eldred v. Meek, 183 Ill. 26, 37, (semble); Ingraham v. Ingraham, 169 Ill. 432, 453; McCartney v. Osburn, 118 Ill. 403, 419, 420, 421, 422. 13 Theobald on Wills, (2nd ed.) p. 410. Howe v. Hodge 14 is clearly explainable upon the same principle. In that case the testator devised the residue of his estate, consisting of reversions after life interests created by previous clauses of the will, real estate in fee not subject to any estate for life or years, and personal property, to his executors in trust for the following purposes: Certain real estate "shall be sold, and the proceeds arising from such sales, and all moneys coming into their hands under this paragraph, shall be invested and kept secured on farm lands, the interest being yearly turned into principal, and the fund thus arising shall be divided among all my grandchildren, as they shall respectively arrive at the age of thirty (30) years. My intention in disposing of the property named in this paragraph is to divide it equally among all my grandchildren." A decree in the lower court found this gift to the grandchildren void for remoteness. This our supreme court reversed upon the ground that the gift to the grandchildren was vested at once upon the testator's death, with only the right to possession postponed. This result was founded wholly upon the ground that by the last sentence of the residuary clause of the will there was a present gift to the grandchildren, and that the direction to divide among the grandchildren as they should respectively arrive at the age of thirty years, had reference only to the distribution or the taking effect of the interests in possession. Of course it made no difference that the direct gift to the grandchildren came after instead of before the clause postponing the possession of the interest.15 Another class of cases of this sort arises in respect to language to this effect: A legal or equitable life estate is created in A with a direct gift after the death of A to B and C, with a direction to the executor or the trustee to convert and divide or distribute after the death of A. Here the fact that the gift is only to take effect in possession after 14 152 Ill. 252. See also Ill. Land and Loan Co. v. Bonner, 75 Ill. 315. But compare Pitzel v. Schneider, 216 Ill. 87, and Reid v. Voorhees, 216 Ill. 236. 15 Theobald's Wills, (2nd ed.) p. 410; 1 Jarman on Wills, (6th ed. Bigelow) star page 796. A's life estate does not make it contingent because the postponement is inevitable considering the position of the estate. The case must, therefore, be treated as if there were a direct gift to B and C with a direction to divide at a future time, thus giving B and C a presently vested interest with a postponed enjoyment. So it has been held in this state,16 and elsewhere.17 § 211. (2) Suppose the only gift is to be found in the direction to pay or to divide at a future time-General rule: Our supreme court has fully recognized that in the case supposed, as a general rule the legacy is contingent upon the legatee being alive at the time specified.18 In quoting with approval from Theobald on Wills it put the matter more concretely, thus:19 "When payment is deferred for reasons personal to the legatee, the gift will not vest till the appointed time."20 However the principle may be worded, it is clear that when the gift is to A at twenty-one, it is contingent upon A's reaching that age.21 Thus, in Howe v. Hodge,22 we have the very carefully considered dictum of the court that the gift of a mixed residue to trustees upon trust to sell and divide the fund arising "among all my grandchildren, as they shall respectively arrive at the age of thirty (30) years,' gives to the grandchildren only an interest contingent upon their attaining thirty,-following Leake v. Robinson.23 16 Chapman v. Cheney, 191 Ill. 574, ante, § 209; Nicoll v. Scott, 99 Ill. 529, 538; Hempstead v. Dickson, 20 Ill. 193; Kelly v. Gonce, 49 Ill. App. 82. Banta v. Boyd, 118 Ill. 186, post, § 215, seems contra. 17 Collier v. Grimesey, 36 Oh. St. 17. 18 Dee v. Dee, 212 Ill. 338, 352, 353; Clark v. Shawen, 190 Ill. 47, 56; Knight v. Pottgieser, 176 Ill. 368, 373-374; Ducker v. Burnham, 146 Ill. 9, 24; McCartney v. Osburn, 118 Ill. 403, 419; Hobbie v. Ogden, 178 Ill. 357, 366; Schuknecht v. Schultz, 212 Ill. 43. 373. See also Eldred v. Meek, 183 Ill. 26, 36-37, semble; McCartney v. Osburn, 118 Ill. 403, 421. 20 Grimmer v. Friederich, 164 Ill. 245, 248. 21 Powers v. Egelhoff, 56 Ill. App. 606. See also Bennett v. Bennett, 66 Ill. App. 28, where contingencies were plainly attached to the gift at a future time. 22 152 III. 252, 275-277. 23 2 Mer. 363. In Lunt v. Lunt, 108 Ill. 307, it was practically conceded that, apart from the effect of other clauses, (post, § 220) the gift 19 Scofield v. Olcott, 120 Ill. 362, to the testator's children, which * Ridgeway v. Underwood,24 is a case of this class which deserves some consideration. Here there was, first, a devise to the testator's wife of a living and support out of the farm left by the deceased. Then the third paragraph of the will proceeded as follows: "I will, at the death of my wife, and on my youngest child coming of age, the farm on which I now reside, as aforesaid, be sold and the proceeds divided amongst my seven youngest children, [naming them], their heirs and assigns forever, and if one or more of said seven children should die before inheriting his, her or their inheritance, to be divided equally amongst the remainder of the seven. Mr. Justice Lawrence, giving the opinion of the court, held, as one of the grounds for the decision, that the gift to the children vested in those only who survived the period of distribution, i. e., when the youngest reached twentyone. This would seem to be perfectly sound upon the ground that the third clause contained a direction to divide on the youngest child's coming of age, which is the same as a legacy to A at twenty-one.25 § 212. Qualification of the general rule where the postponement was for the convenience of the estate: Our supreme court, following the statements of Jarman 26 and Theobald,27 has actually announced 28 the following qualification of the general rule given in § 211: "But even though there be no other gift than in the direction to pay or distribute in futuro, yet, if such payment or destribution appear to be postponed for the convenience of the fund or property, as where the future gift is postponed to let in some other interest, for instance, if there is a prior gift for life, or a bequest to trustees to pay debts, and a direction to pay upon the decease of the legatee for life, or after payment of debts, the gift in remainder vests at once, and will not be deferred read "when my children, or the survivors, shall arrive at the age of thirty years, if my wife still survive, the remainder of said twothirds of my property shall go to and vest in my said children equally," conferred a contingent future interest. 24 67 Ill. 419. 25 Observe, however, that there was, here, in the gift over an argument that the gift to the children was vested, (post, §§ 219-220). 26 Jarman on Wills, (6th ed. Bigelow), star page 798. 27 Theobald on Wills, (2nd ed.) p. 412. 28 See cases cited, post, § 213. |