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3. A bequest in the form of a direction to pay | universally distinguishes a vested from a conat a future period vests an interest immediately, tingent remainder, and not the certainty that if the payment be postponed for the convenience of the estate, or to let in some other interest. the possession will become vacant while the remainder continues.

4. A devise of lands to be sold after the termination of a life estate given by the will, the proceeds to be distributed thereafter to certain persons, is a bequest to those persons and vests at the

death of the testator.

5. Where one, in his will, bequeathed to his daughter the rent of a house in Washington during her life, to be sold after her death and the avails thereof to be the property of her children when they arrive at the age of twenty-one, the interest in the meantime to be applied to their maintenance, and the daughter at the testator's death had one son and after his death she had a daughter: held, that the first child took a vested interest in the be quest in question at the death of the testator, but subject to open and let in after-born children, and to take effect in enjoyment at the death of his mother; that the second child, at her birth, took a like vested intercst to the extent of a moiety; that at her death her right passed to him as dis tributee, according to the Statute of Distribution of Maryland; that at his death all his right passed to his mother, the complainant, as a like distributee under the same statute.

[No. 200.]

'Argued Jan. 21, 22, 1874. Decided Mar. 3, 1874. A1 PPEAL from the Supreme Court of the Dis

trict of Columbia.

Mrs. Elizabeth Cropley filed this bill in the court below, against the appellees, to obtain a construction of a will.

The facts, which the bill sets forth, are stated in the opinion. By order and decrees dated June 6, 1871, and July 10, 1871, the bill was taken pro confesso, and the orders to that effect were made absolute; but Sep. 23, 1871, the orders

and decrees were set aside, and a demurrer was filed. On the same day a decree was passed dismissing the bill.

An appeal was taken to the court in General Term, which affirmed the decree below with costs. The complainant then appealed to this

court.

Messrs. W. D. Davidge and F. W. Jones, for appellant:

The general intent of the will is, that the devise over to the child or children of Elizabeth should vest at the death of the testator.

Goodtitle v. Whitby, 1 Burr., 233; Doe v. Perryn, 3 T. R., 495; 2 Wms. Exrs., 6th ed., 1150-1152; 1 Jarm., 3d ed., 758.

2

The general intent of the testator being clear, words of doubtful meaning will be interpreted so as to conform to such general intent. Jarm., 762, etc.; Rules 7 and 19; Constantine v. Constantine, 6 Ves., 100; Parks v. Parks, 9 Paige, 120; Dawes v. Swan, 4 Mass., 208.

In the construction of wills, courts will look at the relations of the testator to his family, property and the like.

Smith v. Bell, 6 Pet., 68; 2 Jarm., 762; Rule 10, 6 Crui. Dig., 158.

II. That, upon principle and authority, the devise of the house to Elizabeth for life, and at her death to be sold, and the proceeds become the property of her child or children at the age of twenty-one; the interest in the meantime to be applied to maintenance, gave to the child of Elizabeth living at the time of the death of the testator, a vested interest, subject to let in after-born children.

It is the uncertainty of the right of enjoyment, and not the uncertainty of its actual enjoyment, which renders a remainder contingent. The present capacity of taking effect in possession, if the possession were to become vacant.

Doe v. Considine, 6 Wall., 458, 18 L. ed., 869; Fearne, Cont. Rem., sec. 7, pp. 148-150; 4 Kent, Com., 205; 1 Prest. Est., 64, 67, 73, 74, 1 Jarm., 658; 1 Jarm., 764, 765; see, also, 2 Jarm., 75, etc.; Doe v. Perryn, 3 T. R., 484; Goodtitle v. Whitby, 1 Burr., 233; Right v. Creber, 5 B. & C., 866; Doe v. Provoost, 4 Johns., 61; Hannan v. Osborn, 4 Paige, 336; Van Vechten v. Pearson, 5 Paige, 512; Nodine v. Greenfield, 7 Paige, 544; Miller v. Macomb, 26 Wend., 229, Affirming 9 Paige, 265; Minnig v. Batdorff, 5 Pa., 503; Chew's Appeal, 37 Pa., 23; Young v. Stoner, 37 Pa., 105; Ross v. Drake, 37 Pa., 373; Letchworth's Appeal, 30 Pa., 175; Roome v. Phillips, 24 N. Y., 463.

Instead of a limitation over, upon the decease of the mother, directly to the child or children, the will provides "That, at her decease, it is my will that the said house be sold, and the avails therefrom become the property of her children or child, when he, she or they shall have arrived at the age of twenty-one years, the interest in the meantime to be applied to their maintenance."

What is the effect of this provision?

1. It directs imperatively the sale of the property, and bequeaths the product of the sale. It works a conversion, and instead of giving the land, gives a legacy, the product of the land. dren at twenty-one, the interest to be applied in 2. It gives this legacy, to the child or chil

the meantime to maintenance.

What does this provision not do?

1. It does not obliterate the fact that the legacy is preceded by a prior life estate in land, of which the legacy is the product, or, in other words, is in the nature of a remainder.

2. It does not make the sale nor the death of the life tenant a condition precedent to the vesting of the legacy. It does not give the legacy to the child or children living at the time of the sale, or living at the death of the tenant for life. The gift is generally to child or children. there is a conversion and the devise is a devise The direction to sell is absolute, and hence

of money.

Stuart, 14 Ohio, 140; Sharpley v. Fornwood's Craig v. Leslie, 3 Wheat., 564; Furguson v. Exr., 4 Harr. (Del.), 336; Carr v. McLeod, 4 Md. Ch., 257; Maddox v. Dent, 4 Md. Ch., 543.

If one of the parties entitled dies before an actual sale, the fund will go to his personal representatives, as money.

Smith v. McCrary, 3 Ired. Eq., 204; Pratt v. Talliaferro, 3 Leigh. 419; Washington v. Abraham, 6 Gratt., 66; Reading v. Blackwell, Bald., 166; Marsh v. Wheeler, 2 Edw., 157; Fletcher v. Ashburner (1 Lead. Cas. in Eq., 659), 1 Bro. C. C., 497.

A devise of land to be sold works a conversion from the death of the testator. If the conversion is absolutely directed, it matters not that the time of the sale is postponed. A devise of land to be sold, after a life estate arising under the will, is a pecuniary bequest.

Price v. Watkins, 1 Dall., 8; Fairly v. Kline, 2 Penn. (N. J.), 754; Van Vechten v. Van Veghten, 8 Paige, 106; Reading v. Blackwell, Bald., 166; Rinehart v. Harrison, Bald., 177; Tazewell v. Smith, 1 Rand., 313; Patterson v.

Hawthorn, 12 S. & R., 112; Rawlings v. Landes, 2 Bush. (Ky.), 158; Conly v. Kincaid, 1 Wins., N. C. (No. 2), 44; Conklin v. Moore, 2 Bradf., 179.

It follows that where the testator had be queathed land, directing it to be sold, the will must be governed by the rules applicable to limitations of personal property.

Above authorities; Burrill v. Shiel, 2 Barb., 459; In re Hart, 3 De Gex & J., 195.

The devise to the child or children is then a devise of money. It vested at the death of the testator.

The provision under discussion gives the principal at twenty-one and the interest in the meantime; that is from the death of the devisee for life. Both principal and interest are appropriated to the child or children.

In such a case, it is clear that the provision, in respect of vesting, cannot be distinguished from a legacy of the money, limited by way of remainder, upon an estate for life, and to take effect at the decease of the first taker.

Fonereau v. Fonereau, 3 Atk., 645; S. C., 1 Ves. Sr., 118; Hoath v. Hoath, 2 Bro., C. C., 4; Hanson v. Graham, 6 Ves., 239; 1 Jarm., Wills, 800-802; 2 Wms. Exrs., 6th ed., 1144; 2 Wms. Exrs., 1150-1152; 1 Roper, Leg., 390.

It will be observed that the provision calls for the application of the entire interest, and not a mere allowance for maintenance. The whole interest is appropriated. 1 Jarm., 802; In re Hart, 3 De Gex & J., 195.

III. William Cooper Cropley attained the age of twenty-one. Even if the legacy was contingent until that period, it then vested.

Price v. Watkins, 1 Dall., 8; Fairly v. Kline, 2 Pen. (N. J.), 754; Tazewell v. Smith, 1 Rand., 315; Reading v. Blackwell, 1 Bald., 166; Rinehart v. Harrison, 1 Bald., 177.

It is no exception to the rule that land directed to be sold and turned into money is considered as money from the death of the testator, because the period of sale is remote, and the conversion cannot be made until the time arrives.

If the proceeds of land devised to be sold are given to a feme covert who dies before there can be a sale, the legacy is vested.

Conly v. Kincaid, 1 Wins. (N. C., No. 2), 44; Ross v. Drake, 37 Pa., 373; Conklin v. Moore, 2 Bradf., 179; Paterson v. Hawthorn, 12 Serg. & R., 112; Van Gieson v. Howard, 3 Halst., Ch., 462; Sebastian's Estate, 4 Phila., 236; Halifax v. Wilson, 16 Ves., 168; Leeming v. Sherratt, 2 Hare, 14; Packham v. Gregory, 4 Hare, 396; Smith v. Palmer, 7 Hare, 225; Bromley v. Wright, 7 Hare, 334; Day v. Day, 1 Drew., 569; In re Hart, 3 De Gex & J., 195; Roebuck v. Dean, 2 Ves., Jr., 265.

It has not been lost sight of, that the devise to the widow is of the rents of the house in question, and the devise of the rent was to Elizabeth; but it is submitted that such expressions are equivalent to a devise of the land

itself.

1 Jarm., 756, and cases cited; Drusadow v. Wilde, 63 Pa., 170; Young v. Stoner, 37 Pa., 105, where the word used was "income;" Reed v. Reed, 9 Mass., 372; Blanchard v. Brooks, 12 Pick., 63; Blanchard v. Blanchard, 1 Allen, 223; Schermerhorne v. Schermerhorne, 6 Johns. Ch., 70.

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Messrs. Joseph H. Bradley and R. T. Merrick, for appellees:

The intention of the testator was to give the complainant the rent of this property for her life; and if she left any child or children, living at her death, the property was to be sold. If any such child or children so living was under the age of twenty-one years, the avails of the sale were to be invested, and the interest applied towards the maintenance of such child or children until the age of twenty-one, and then the avails were to become the property of, that is, to be distributed among, such children, when and as they should attain the age of twentyone years.

The bequest is personalty, to be raised by a sale of real estate, which real estate is not to be sold till the death of the complainant. When sold, the proceeds are to be divided among the complainant's children or child. If she shall leave no child or children living at her death, the bequest must fail and lapse into the general estate of the testator. During the life estate of the complainant, the fee is in the testator's heirs, subject, on the death of the tenant for life, to be converted into money; but if she shall leave no child or children living at her death, the incumbrance on the estate is gone, and the fee remains in those heirs, discharged of the incumbrance.

It is settled law, that if a legacy is to be paid out of the proceeds of the sale of land to be made at a future day, and the legatee dies before the time for the sale arrives, the legacy lapses.

See, Duke of Chandos v. Talbot, 2 P. Wms., 619-613, and the authorities in Mr. Cox's note to that case; Note 1, Perk, ed. to Fletcher v. Ashburner, 1 Bro. C. C., 497; Ackroyd v. Smithson, 1 Bro. C. C., 503; see, also, 1 Whi. & Tu. L. Cas. in Eq. and the English, but especially the American Notes; Cruse v. Barley, 3 P. Wms., 22 (5th ed.), Mr. Cox's Note; 1 Wms. Exrs., 586 (marg.).

The reason is, that in such and cases like the present, the conversion is to take place only for the purposes of the will, and not "out and out."

See, for Amer. cases, in addition to those in the note to Ackroyd v. Smithson, sup.; Smith v. McCrary, 3 Ired. Eq., 208; Com. v. Martin's Exr., 5 Mumf., 121; Morrow v. Brenizer, 2 Rawle, 189; Burr v. Sim, 1 Whart., 262; Pratt v. Taliaferro, 3 Leigh, 423; Wood v. Cone, 7 Paige, 476; Wood v. Keyes, 8 Paige, 369; Arnold v. Gilbert, 3 Sandf. Ch., 556; 1 Jarm. Wills, 756.

This legacy is contingent and did not vest in any of the children of the complainant. Leake v. Robinson, 2 Mer., 363; Ford v. Rawlins, 1 Sim. & Stu., 328; Taylor v. Bacon, 8 Sim., 100; and especially Battsford v. Kebbell, 3 Ves., 363, and n (a), Sum. ed.; Sansbury v. Reed, 12 Ves., 75, and 1 Roper, Leg., 500, White's ed.; Judd v. Judd, 3 Sim., 525; Newman v. Newman, 10 Sim., 51; 2 Redf. Wills, 621, pl. 39; Cripps v. Wolcott, 5 Madd. Ch., 11; Gibbs v. Tait, 8 Sim., 132; Wordsworth v. Wood, 2 Beav., 25; 8. C., 4 Myl. & Cr., 641, where the rule is clearly stated by Lord Landesdale and approved by Lord Tottenham; Brewitt v. Stauffers, 9 Law J. (N. S.) Chan., 209; Pope v. Whitcombe, 3 Russ., 124; Barber v. Barber, 3 Myl. & Cr., 688, as to a class.

William C. Cropley, the child of Mrs. Crop- | obtain a construction of the will, and to ascerley, did not take a vested interest in this be- tain her rights. quest.

"The general rule, both in England and America, in regard to the vesting of legacies given to a class is, that it shall be deferred until the time of payment; especially when they were charged on real estate."

Remnant v. Hood, 6 Jur. (N. S.), 1173; Ch. Ct. of App.; White v. Baker, 6 Jur. (N. S.), 591, is to the same effect, where it is said Scurfield v. Howes, 3 Bro. C. C., 90, is not at variance with the other cases; Young v. Robertson, 8 Jur. (N. S.), 826, House Lords; Collin v. Collin, 1 Barb. Ch., 630, 5th proposition, also 1 Jarm. Wills, 704; and in the American courts, see Hawkins v. Everett, 5 Jones, Eq., 42; Simp-divided between his children, their heirs and son v. Spence, 5 Jones, Eq., 208; Vawdry v. Geddes, 1 Rus. & M., 203, and Bland v. Williams, 3 Myl. & K., 411.

And where the devise is to a class, and one dies before attaining the prescribed age, it is the same as if he had never existed, the estate passing to the survivors of the class, and so on to those of the class who shall be in existence at the time the estate vests, that being the period at which the individuals of the class were required to be definitely ascertained.

2 Redf. Wills, 621, 624; Lloyd v. Lloyd, 3 Kay. & J., 20, and the comment of Sr. Sam. Romily on Leaming v. Sherratt, cited in Cooper v. Cooper, 7 Jur. (N. S.), 178; Remnant v. Hood, 6 Jur. (N. S.), 1173.

Mr. Justice Swayne delivered the opinion of

the court:

This case turns upon the following clause of the will of William Cooper, deceased:

"To my daughter, Elizabeth Cropley, at her mother's death, I give and bequeath the rent of my house on Pennsylvania Avenue in the City of Washington, situated on square, for and during her life; and at her decease it is my I will that the said be sold, and the avails therefrom become the property of her children; or child, when he, she, or they have arrived at the age of twenty-one years, the interest in the meantime to be applied to their maintenance." The testator died in 1845. He left at his decease a widow, Sarah Cooper, and four children; William, John, Joseph, and Elizabeth, the complainant. William and Joseph were married and had children. John was unmarried. Elizabeth was intermarried with Richard Cropley, and had living one child, William Cooper Cropley, then about three years old. Shortly after the testator's death, Elizabeth gave birth to a daughter, who died in early infancy. Richard Cropley, the husband of Elizabeth, died in 1851. Her mother died in 1854. Her son, William Cooper Cropley, died in 1870, at the age of twenty-eight years, not having married. After his death, Elizabeth Cropley, the complainant, then fifty-six years of age, claimed to own the house on Pennsylvania Avenue devised to her for life. Her brothers, William, John and Joseph, set up claims as heirs at law of their father, alleging that the bequest to the children of Elizabeth had failed by reason of the death of both of them before the death of their mother, and of the younger one before 172*] reaching the age of twenty-one years. The complainant thereupon filed this bill to

The question presented for our determination is, whether the bequest to her children lapsed, as is insisted by the appellees; or, in other words, whether it was vested or contingent. It is an axiom in the law of wills that the intention of the testator shall prevail. Upon looking at this will as regards the four children of the testator, we find that the provision made for each is clear and explicit. He gave to William, after his mother's death, the income from $1,250 of the stock of the Potomac Insurance Company, and a vacant lot on Capitol Hill. At his death, it is directed "that the said vacant lot and the aforementioned stock is equally assigns forever." To John, at his mother's death, was given the use of a farm; or, if sold by his mother, the interest accruing from the proceeds, for life. If he should marry and have lawful issue, at his death, the farm or its avails was to be equally divided among his children when they should arrive at the age of twentyone, "the interest in the meantime to be applied to their maintenance." This clause concludes as follows: "Should my son John die without issue, it is my will that the said farm or its avails, in case of its being sold, be equally divided among my other children, share and share alike, to them, their heirs and assigns forever." To Joseph, at his mother's death, was given the interest of $1,500 of Alexandria Corporation stock, and at his death it was "to be equally divided between his children." Then follows the provision for Elizabeth and her children.

The property given to the sons who had children, is given to them for life, and at their death to their children in equal shares. There is no provision beyond this. The gift is absolute. The children of John, if he should have any, were not to receive their shares until they should arrive at the age of twenty-one. But the interest, in the meantime, was *to be [*173 applied to their support. It was only in the event of his dying without issue that the further provision was to take effect. The entire failure of issue at his death and not the failure of such issue to reach the age named was the condition of the gift over to his brothers and sister.

So as respects the complainant, who, like her brothers William and Joseph had issue living at the death of the testator. The gift is to her and her child or children, and there is no devise or bequest over in any contingency that might occur. The mother and children were the objects of the testator's solicitude and bounty. He looked no further into the future. William, Joseph and Elizabeth and their children, were thus placed upon a footing of equality. If John should have lawful issue living at his death, such issue would be in the same category with the children of William, Joseph and Elizabeth. It seems clear to us that the testator intended that what was given to each of his children should vest interest in them and in their children as early as possible, the period of enjoyment to be deferred in each case as was specially provided, and that the result should be the same in John's case if issue should thereafter be born to him and survive him. Be

yond his grandchildren, including the children of John, if any should be living at his death, the testator left it to the local law of descent and distribution to meet any emergency that might arise.

It was only in the single event of John dying without issue, that it was declared by the testator that the property thus given to one of his children should go over to the others.

If we pursue the subject before us by the light of the rules of law which apply, we shall reach the same conclusion. An analysis of the clause in question eliminates these particulars: Laying out of view the estate of her mother, a life estate is given to Elizabeth Cropley.

At her death, whenever that might occur, and whatever then the age of her offspring, the 174*] property was to be sold and converted into money. Her death and the sale might have occurred immediately after the death of the testator.

Upon the sale being made, her offspring, if minors, would have become entitled to the interest of the fund until the age of twenty-one years was reached. The right to receive the whole or an aliquot part of the fund would then have accrued.

The time of selling had no relation to the age of the legatees.

It depended wholly on the death of the tenant of the life estate.

The effect of her dying during their infancy would have been that they would have taken the interest instead of the principal of the fund up to the age of twenty-one, and then the principal instead of the interest.

The real estate having been directed by the will to be converted into money, it is to be regarded for all the purposes of this case as if it were money at the time of the death of the testator. That it was not to be sold until after the termination of two successive life estates does not affect the application of the principle. Equity regards substance and not form, and considers that as done which is required to be done. The sale being directed absolutely, the time is immaterial. Craig v. Leslie, 3 Wheat., 563; Peter v. Beverly, 10 Pet., 563; Taylor v. Benham, 5 How., 269; Fairly v. Kline, 2 Penning., 754; Reading v. Blackwell, Bald., 166; Hocker v. Gentry, 3 Met. (Ky.), 473.

Where a bequest is given by a direction to pay when the legatee attains to a certain age, and the interest of the fund is given to him in the meantime, this shows that a present gift was intended, and the legacy vests in interest at the death of the testator. In re Hart's Trusts, 3 De Gex & J., 202; Hanson v. Graham, 6 Ves., 239; Hammond v. Maule, 1 Coll., 281; Burrill v. Sheil, 2 Barb., 471; Bayard v, Atkins, 10 Pa. St., 20; Provenchere's Appeal, 67 Pa. St., 466; Hanson v. Brawner, 2 Md., 102; Nixon v. Robbins, 24 Ala. 669.

or bequest. Hallifax v. Wilson, 16 Ves., 171; Leeming v. Sterratt, 2 Hare, 14; Packham v. Gregory, 4 Hare, 396; Winslow v. Goodwin, 7 Met., 363; White v. Curtis, 12 Gray, 54; Tucker v. Ball, 1 Barb., 94; Barker v. Woods, 1 Sandf. Ch., 129; Thomas v. Anderson, 6 C. E. Green, 22; McGill's Appeal, 61 Pa. St., 47; Tayloe v. Mosher, 29 Md., 443; Brent v. Washington, 18 Gratt., 526; Fuller v. Fuller, 5 Jones, Eq., 223; Roberts v. Brinker, 4 Dana, 573; Rawlings v. Landes, 2 Bush., 159.

A devise of lands to be sold after the termination of a life estate given by the will, the proceeds to be distributed thereafter to certain persons, is a bequest to those persons and vests at the death of the testator.

Fairly v. Kline, supra; Reading v. Blackwell, 1 Bald., 166; Rinehart v. Harrison, 1 Bald., 177; Loftis v. Glass, 15 Ark., 680.

It is a consideration of weight that if William Cooper Cropley, who died at the age of twenty-eight, had married and left children, according to the proposition of the appellees, they could have taken no benefit from the provision made for their father. Such could not have been the intention of the testator. In real property cases where the question arises whether a remainder is vested or contingent, this consequence is held to be conclusive-that it was the former. Carver v. Jackson, 4 Pet., 1. In Goodtitle v. Whitby, 1 Bur., 234, Lord Mansfield said: "Here, upon the reason of the thing, the infant is the object of the testator's bounty, and the testator does not mean to deprive him of it in any event. Now, suppose this object of the testator's bounty marries and dies before his age of twenty-one leaving children, could the testator intend, in such event, to disinherit him? Certainly he could not." In Doe v. Perryn, 3 T. R., 495, Buller, J., said: "But if this were held not to *vest until the death of the [*176 parents, this inconvenience would follow: that it would not go to the grandchildren, for if a child were born, who died in the lifetime of his parents, leaving issue, such grandchild could not take, which could not be supposed to be the intention of the testator." This reasoning applies to the present case.

Boraston's case, 3 Coke Rep., 21, was referred to by counsel on both sides. The point there ruled was as follows: if real estate be devised to A when he shall attain a given age, and until A attains that age, the property is devised to B, A takes an immediate vested estate, not defeasible on his death under that age, the gift being read as a devise to B for a term of years, with remainder to A. The same doctrine has since been affirmed in numerous other cases, and is now a canon of the English law. Hawk., Wills, 237. Boraston's case related to real property. If this were such a case it would be in point and conclusive. It has been applied by American courts to bequests of personalty. A bequest in the form of a direction to pay at Roberts v. Brinker, 4 Dana, 573; Watkins v. a future period, vests in interest immediately if Quarles, 23 Ark., 179; Collier's Will, 40 Mo., 175*] the payment be postponed *for the con- 287. The subject of vested and contingent revenience of the estate or to let in some other in-mainders was examined by this court in Doe v. terest. The payment of debts is an instance of Considine, 6 Wall., 476, 18 L. ed. 875. the former, and a prior temporary provision Chancellor Kent (4 Com., 280) says: "It is for some other person, as for Elizabeth Cropley the uncertainty of the right of enjoyment and in this case, is an instance of the latter. In all not the uncertainty of its actual enjoyment such cases it is presumed that the testator which renders a remainder_contingent. The postponed the time of enjoyment by the ulti-present capacity of taking effect in possession, mate legatee for the purpose of the prior devise if the possession become vacant, distinguishes

a vested from a contingent remainder, and not | Submitted Dec. 19, 1873. Decided Mar. 3, 1874. the certainty that the possession will ever be

come vacant while the remainder continues." A

"When a remainder is limited to a person in esse and ascertained to take effect by words of express limitation on the determination of the preceding particular estate, this remainder is most clearly and unquestionably vested." 1 Prest. Est., 70.

Bequests involving the question before us may be resolved into two classes:

(1) Those where the time or event referred 177*] to in the future is of the substance and a condition of the gift and, hence, marks the time of vesting in interest.

(2) Those where the vesting in interest has already occurred, and such event or time only designates the period of the commencement of the enjoyment.

PPEALS from the Court of Claims.

The case is stated by the court.
Mr. C. H. Hill, Asst. Atty. Gen., for the
United States.

Messrs. Durant & Hornor, for Caldwell. Mr Justice Hunt delivered the opinion of the court:

Caldwell brought his action to recover damages for the breach of a transportation contract, dated March 12, 1866. The 1st, 2d and 11th articles present the points in dispute, and are in the words following, viz.:

Article I. That the said Alexander Caldwell shall receive, at any time in any of the months from April to September inclusive, during the year one thousand eight hundred and sixty, from the officers or agents of the Quartermas

We think this case belongs to the second cat-ter's Department at Forts Leavenworth and egory.

We hold that William Cooper Cropley took a vested interest in the bequest in question at the death of the testator, but subject to open and let in after-born children, and to take effect in enjoyment at the death of his mother; that his sister, at her birth, took a like vested interest to the extent of a moiety; that at her death her right passed to him as distributee, according to the Statute of Distribution of Maryland; that at his death all his right passed to his mother, the complainant, as a like distributee under the same statute. If the property shall be sold at her death all the avails will go to her legal representative. She may dispose of them in advance by will, or leave them to be distributed according to the statute.

At the age of twenty-one William Cooper Cropley might have elected to take the property instead of its proceeds. In that event no sale could have taken place. The complainant is now the only party in interest. Under the circumstances, we think the complainant may exercise the right of election as her son, if living, could have done, and that, under the general prayer for relief in the bill, she may accomplish that object in this case, if she shall desire to do 80. Craig v. Leslie, 3 Wheat., 563; Fletcher v. Ashburner, 1 L. Cas. Eq., 794, 805, notes.

The decree of the Supreme Court of the District of Columbia is reversed, and the cause will be remanded with directions to enter a decree in conformity to this opinion.

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Riley, in Kansas; at Fort Kearney, Nebraska Territory; Fort Sedgwick, Colorado Territory; Fort Laramie, Dakota Territory; and at any points or places at which posts or depots shall be established during the continuance of this contract, on the west bank of the Missouri River, north of Fort Leavenworth, and south of latitude 42 degrees north, all such military stores and supplies as may be offered or turned over to him for transportation, in good order and condition, by the officer or agent of the Quartermaster's Department, at any or all of the above points or places, and transport the same with dispatch and deliver them in like good order and condition to the officer or agent of the Quartermaster's Department on duty or designated to receive them at any of the posts or depots which are now or may be hereafter established in the Territory of Colorado, north of 40 degrees north, and at Denver City, and in the Territories of Nebraska, Dakota, Idaho and Utah, south of the latitude 44 degrees north, including Fort Reno, and east of longitude 114 degrees west of Greenwich, agreeably to the instructions he may receive from the officer or other authorized agent of the Quartermaster's Department, charged with the duty of forwarding the stores and supplies at Fort Leavenworth or other place of departure; and for the faithful performance of such service, he shall be paid in the manner hereinafter provided for in article XV. of this agreement, and at the rates specified and shown in the tabular statement hereto annexed and signed by the parties to this agreement, which statement is considered as part hereof.

Article II. That the said Alexander Caldwell agrees and binds himself, his heirs, executors and administrators, to transport under *this agreement from the posts, depots [*265 or stations named in article 1, or from or to any other posts, depots or stations that may be established within the district named in said article any number of pounds of military stores and supplies from and between one hundred thousand pounds and ten million pounds in the aggregate.

Article XI. That the said Alexander Caldwell shall transport all the military stores and supplies for which the Quartermaster's Depart ment may require wagon transportation by contract, on the route specified by this agreement, during the year one thousand eight hundred and sixty-six; provided the weight of such mil

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