Snow v. Snow , 49 Me. 159 ( 1861 )

The opinion of the Court was drawn up by

Tenney, C. J.

On June 12, 1846, William Snow, the father of the plaintiff’s intestate and the defendant, made his will, which makes a part of this case. The defendant was appointed administrator with the will annexed, but this suit is not against him in his capacity of administrator.

The testator devised to Lydia, his wife, the use, income and improvement of real estate described in the will, during her widowhood, or so long as she should remain his widow. He also bequeathed to her the use of all the stock on the homestead, which he owned, together with all the household furniture, including the bedding, clothing, crockery ware, hardware and all other articles used in and about the house. Also, all the farming tools, harnesses, carriages, equipage, and the articles used about the barns and stable. Also, the use as above of the vessels, and their proceeds, as hereinafter mentioned, viz., one-fourth part of the Orriugton Packet, one-fourth part of the vessel called the -, one-eighth part of the vessel called the-, and one-eighth part of the vessel called George. Also, the privilege of using so much of the money which the testator had on hand when said will was made, as should be necessary for her support and convenience. Also, the privilege of receiving all moneys, due by note or account, to be used as aforesaid if necessary, and the use and income and benefit of all his personal property, not named previously, wherever the same may be found, together with the privilege of taking off and cutting all the woocl and timber standing or remaining, at the time of the making of the will, on a parcel of land therein described, so long as she should remain his widow.

The testator devised to his son, the defendant, certain real estate after the marriage or decease.of his wife Lydia,* also, one half part of all his personal estate which should remain after the marriage or the decease of said Lydia, including all the articles specified in the bequest to his wife, provided he should support, &c., in health and sickness, and common education, Edward Snow, the plaintiff’s intestate, until he shall be twenty-one years old, and provided, also, that' he should support and maintain Betsey Snow, the testator’s daughter, in health, sickness, &c., until Edward Snow, his son, should arrive at the age of twenty-one years. After that time, the said Isaac was to furnish and provide one half as aforesaid, until said Betsey should many or choose to maintain herself, &c.

A devise was made to Edward, the son of the testator, of certain real estate, and the remaining part of all the testator’s personal property, which should exist after the decease of his wife Lydia, referring to the same property specifically named, in the bequest to his wife of the use of personal property. Then follows the following clause; — "Said Edward shall come into possession of the above named estate when he shall arrive at the age of twenty-one years, or at the decease or marriage of Lydia,” the testator’s wife. And it was provided that, at the age of twenty-one years, Edward should furnish one half part of what was necessary for the support of the testator’s daughter Betsey, &c.

Edward Snow, the plaintiff’s intestate, died when he was about twenty years of age, and, subsequently, his mother died, without having been married after the death of the testator.

The report of the case shows that Edward Snow had been for some years following the seas, upon his own account; that he had sailed in a brig, as mate, and died on the voyage or afterwards, and that the defendant went to New York, whence Edward had sailed, brought home his wearing apparel, and settled with the master of the brig for the wages, and received therefor the sum of seventy dollars.

The defendant offered to show that the wages were received while the mother was alive, who lived with him, and that he went at her request and as her agent, and delivered the money so received to her, who divided it among some of the heirs, and that he has had no control or possession of it since. This evidence was not received.

The action is for money had and received, and the claim is for any money in the defendant’s hands, arising out of the personal property devised to Edward, and also for the wages received by the defendant.

The presiding Judge ruled, that the claim first named could not be upheld, as Edward did not survive his mother, and died while he was a minor.

When a legatee, named in a will, dies before the death of the testator, the legacy is said to have lapsed, there being no person to take, at the time when the will is to take effect. 3 Bac. Abr., 476.

The general rule is, that if a legatee die before the testator, or before the condition upon which the legacy is given be performed, or, before it be vested in interest, the legacy is extinguished. Treat. Eq., lib. 4, pt. 1, c. 2, § 3. The rule will not extend to a legacy to two or more, for though, by the civil law, there is no survivorship among legatees, yet it is settled that a legacy to two or more, jointly, is not extinguished by the death of one, but will vest in the survivor. Gilb. Rep., 137 ; 2 Atk., 220. But when the legacy is to two or more, severally, or to be divided, share and share alike, and one dies, his share will lapse. 1 P. Wms., 700; 2 P. Wms., 489.

The testator gave " £100 apiece to the two children of I. S., at the end of ten years after his decease.” The children died within ten years. Lord Chancellor Cowper said, "this is a lapsed legacy, and shall not go to the executors of the children; for the diversity is, when the bequest is to take effect at a future time, and when the payment is to be made at a future time.” "That whenever the time is annexed to the legacy itself, not to the payment of it, if the legatee dies before the time of payment, it is a lapsed legacy, in that case.” Ewer v. Jones, 2 Salk., 415.

"If a contingent legacy be left to any one, as when he attains, or, if he attains the age of twenty-one, and he dies before that time, it is a lapsed legacy. But a legacy to one, to be paid when he attains the age of twenty-one years, is a vested legacy, an interest which commences in prassenti, although it be solvendwm in futuro. 2 Black. Com., 513. And, in note 17, by Mr. Christian, it is said, "if the legacy is given when, or, if the legatee attains a certain ago, or to h im at that age, the time is said to be annexed to the substance of the legacy, and it is not vested or transmissible to his representatives, if the legatee dies before that age.” 2 Dane’s Abr., c. 43, art. 3 and 4, pages 243, 244 and 245, where it is said in reference to the case cited from 2 Salk., and the distinction was taken, "where the payment is to be made at a future time,” and "where the bequest is to take effect at a future time,-” for "whenever the time is annexed to the legacy itself, and not to the payment of it, if the legatee dies before the time of payment, it is a lapsed legacy.”

The common law has been changed by the statute of Massachusetts, of Feb. 6, 1784, so that the principles which we have noticed have been modified in cases where a relative of the testator, having a devise of real or personal estate, dies before the testator, leaving lineal descendants, they take such estate as would have been taken by such deceased relative if he had survived. This provision is incorporated into our present revised statutes, c. 74, § 10, and is a reenactment of the code of 1841, in c. 92, § 19, and which is similar to the proyision in the statutes 1821, c. 33, § 15. This provision cannot apply to the case before us, as it is reported, as it does not appear that Edward Snow left lineal descendants, nor did he die before the testator.

When the whole will in this case is examined, it cannot be doubted, that the time when Edward Snow could be entitled to the possession of the property, which was of a personal character, was annexed to the legacy itself. A remainder, at most, was the subject of the bequest. It depended on two contingencies; one, whether any thing would remain at the death or the marriage of his mother, and the other, whether he would ever attain the age of twenty-one years. The fall of the legacy by the death or marriage of the mother, would not be avoided by the legacy of one half of the remainder of the property to Isaac, the defendant, as it would be if the legacy had been joint. The two were several and distinct one from the other. The one to the defendant was to come to his possession on the death or marriage of the mother, without restriction as to time.

The receipt of the wages of Edward Snow, as the mate of the brig, by the defendant, not being controverted, the facts offered to be shown will not avoid the liability to the plaintiff therefor. The money is treated by the defendant as that of the intestate. The mother had no legal claim for that money upon the master or the owners of the vessel. If payment had been refused, she could in no mode have enforced it; but it was purely gratuitous, and did not relieve the party indebted from liability still. But the plaintiff having treated the settlement made by the defendant as proper, it is to be regarded as a ratification of payment pro tanto, at least. The administrator of the intestate’s estate alone could maintain a suit for this money, whether in the hands of the original debtor or the one who received it of him. The right of the mother to receive this money failing, the basis of the defendant’s agency falls at the same time.

The delivery of the money so received to the mother, did not exonerate the defendant from his obligation to pay it to the plaintiff; having once the money in his hands, knowing it to have been the property of the intestate, the passing of it over to the mother did not relieve him, because she had no right to its custody as against the plaintiff. The distribution of it among the heirs, by her, was without authority, and he cannot invoke it for his protection.

It is insisted, for the defendant, that the ratification of the defendant’s acts in the receipt of the money must be so extended as to embrace the ratification of the authority, derived from the mother of the defendant and the intestate. This proposition is not attempted to be sustained by any authority, and cannot be admitted. "When the plaintiff found that the defendant had received the money belonging to the estate which he represented, (which is not denied by the latter,) he was entitled to the equitable action for money had and received, and he could not be bound by the fact that the defendant claimed to have acted as an agent for a person having no power over the fund which was in his hands. The evidence offered was properly excluded.

Other views have been presented on the first point in the case, by the counsel, which we have not considered, as they were not involved in the case. The construction of the will was one question presented, and the other was the admissibility of defendant’s evidence, which was rejected.

According to the agreement of the parties, the defendant is to be defaulted on account of the. money" received by the defendant for the intestate’s wages.

Rice, Appleton, Cutting, May and Kent, JJ., concurred.