Page:United States Reports, Volume 1.djvu/19

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8
Cases ruled and adjudged in the

1763.

Price verſus Watkins.

Special Verdict. The Queſtion aroſe on theſe Words of a Will.–

Item my Will is that after my Wife Ruth Price’s Deceaſe, or if ſhe ſhall alter her Condition and marry, then in ſuch Caſe I deviſe and bequeath unto my loving Friends I. W. and M. K. or to any one of them, in caſe the other ſhould die, in Truſt and for the Intent to ſell and convey all that Meſſauge &c. to any Perſon or Perſons that ſhall purchaſe the ſame, and the Money ariſing from the Sale of the Premiſes ſhall be divided between my Children herein after named, when they attain ſeverally to the Age of 21 Years or be married, which ſhall firſt happen.”

Samuel Price one of the Children attained the Age of 21 Years and married, and afterwards died inteſtate and and without iſſue, in the life Time of the Teſtator’s Widow Ruth Price, who did never marry again. Then the Widow died, and after her Death the Truſtees ſold, and the Adminiſtratrix of Samuel brings this Suit for Samuel’s proportionable part of the Money ariſing from the Sale of the Houſe. And the Queſtion was, whether this was a veſted Legacy to Samuel, or to whether it was lapſed by his dying before the Truſtees had power to ſell, to wit, in the life Time of the Teſtator’s Widow.

For the Plaintiff it was urged, that Land ordered to be ſold and converted into Money, was to be conſidered as personal Eſtate. That this Land was to be ſold at all Events, ſo there was no Contingency. That both Events to make a veſting in Samuel had happened, to wit, attaining the Age of 21 and marrying; and that this Caſe was exactly familiar to the Caſe of King verſus Wilkes. Talbot’s Caſes 117. Beſides which many other Cafes were cited for the Plaintiff viz. 2 Vern, 536. 1 Peer Williams 109. 2 Peer Williams 320. 2 Ab. Ca. Eq. 548. 2 Vent. 347. 2 Vern. 758. 766. 4 Bac. Ab. 308. 2 Vent. 366. 2 Vern. 72. 348. 424. 2 Ab. Ca. Eq. 654.

For the Defendant it was ſaid, that in Legacies to be raiſed out of Land, the Time of Payment is the Time of veſting. That in this Caſe the Land could not be conſidered as perſonal Eſtate, till the Truſtees had power to ſell it, which was not till after the Widow’s Death, and that Samuel dying before, his Legacy was lapſed and would merge for the Benefit of the Heirs. And the Caſe of Oads and Ferry was much relied on, Vin. Deviſe 383. The other Caſes cited for the Defendant were 2d Vern. 92. 416. 208. 2 Peere Williams 276. 610. 484 . 3 Peere Williams 20.

But the Court were clearly of Opinion, that it was a veſted Legacy, and Judgment was given for the Plaintiff.