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unless he proves to be also a survivor, at the period of distribution. I submit that, if there are any rules of law that can be counted settled, this one, which ascertains the meaning and force of this testators words of survivorship in his gifts, is settled; and this testator is entitled to the benefit of that rule, and to the protection of his purposes in this will.

In that grave of Julia Newberry, in that beautiful cemetery under the walls of that great and ancient city, Rome, which is itself the tomb of the splendors and ambitions of generations and races of men, there were buried all the fatherly affections, hopes and pride of this testator; but there still remain, unburied there, those principles of our jurisprudence and the assured methods and forms of our judicature, upon which my brother Dexter amplified the other day, and which our law has established as the safeguards of property, and of the testaments of the dead; and we rest upon them here as the safeguards of this testament, and of the clear purposes of this testator.

But now, they tell us, that the widow having renounced this will, this is become a situation which is governed by the "doctrine of the acceleration of remainders." What is that "doctrine" of the acceleration of remainders? It is simply that where an estate is given, as to A lor life, with a direct remainder to B, the remainder will take effect upon the determination, by any cause, of the intermediate estate, unless a contrary intent appear in the will.

Now, we do not dispute that this is law in any case proper for its application, but there is no room for its application here. What have we here, if your Honor please? Have we the case of a gift of this estate to Mrs. Newberry, and a direct remainder over to these claimants, or any of them? Quite the contrary. We have a gift to Mrs. Newberrv of an annuity, less than the usual interest on one-tenth the personalty of this estate, and a residence lot for her life, with express provision that upon her death, or failure to take for any cause, it shall revert to the mass of the estate for the general purposes of the will. Such is the express provision—that whenever any person, who has been appointed the recipient of a gift, becomes incapable of taking, as she became incapable of taking by renunciation, such gift shall revert and sink into the mass of the estate.

There is no remainder, therefore, limited to any of the orators in this bill at the death of Mrs. Newberry, even of the property given to her. Under the administration of the general trusts of this will, these persons, or some of them, may eventually get a portion of the general estate; but there is no remainder over to them of the property given by this will to Mrs. Newberry. When they speak of the failure of " the intermediate estate," that does not fit her estate; as to them, she is not intermediate. In the "order of estates," discussed here with so much amplification, these parties take no estate which succeeds to hers. In the order of estates, as given by this will, her annuity ceases at her death, and the residence lot. sinks into the capital of the trust estate, and in the course of its administration, a part of the general fund may eventually get to some of these parties. But there is no limitation over to them, or any of them, upon the failure of any estate given to Mrs. Newberry.

The next difficulty in the application of this doctrine is, that the property they claim is not the property in which her life estate is created at all. They propose to take three or four millions of real estate, and a million or so of personal property, in which no interest whatever is given to her by this will, because her interest determined in an annuity of $10,000 and a residence lot on the corner of Rush and Ontario streets. Why, hers is not an "intermediate estate" as to them, even with reference to the property that they are claiming.

Suppose a devise of Blackacre to A for life, and a remainder at his death to B; and a devise of Whiteacre to X for life, with a remainder at his death to B, and by forfeiture, renunciation, or other cause, A's estate fails. Is B's remainder accelerated, as to Whiteacre also? In this "orderof estates," these claimants fail to succeed Mrs. Newberry, both in point of time and in the subject matter of the estate. As to the great mass of this property, the prior estate is in the trustees, until the time of distribution fixed in the -will. Into that estate the property given her falls, if the gift to her fails for any cause.

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Now, my brother Dexter was very facetious yesterday over the case of Timbcrlakc v. Parish!11 Two or three times he called your Honor's attention to the fact, that in that case the testator had given a few dollars and some shingles, and a bureau, or some such sequence of assets to his wife; and that is all very droll, no doubt, but the element of that case material to this situation is, that even where acceleration might take place under otherwise proper circumstances, nevertheless it will not be allowed, if third persons are to be injuriously affected by it.

Now, let us see how this " doctrine of the acceleration of re"mainders" would affect some persons not parties here. Let me call your Honor's attention to the situation of this little May Edgerton, whose name appears in this record. We shall come to her again in considering the question of proper parties to this case; that is her special office in this record; but let us think of her situation with reference to this "acceleration of remainders." The testator left three brothers and one sister, Mrs. Louisa Edgerton. Along the line of descent from her will pass one-fourth of this whole property that is to be distributed. She has left two children, one a maiden lady in very infirm health, and about 60 years of age. The other is Oliver N. Edgerton, one of the claimants here, shown by the bill to be infirm and in feeble health, and in the neighborhood of 60 years old. He is the father of little May Edgerton, an infant, 16 years of age; and the bill avers "that he is poor, and without "means to suitably maintain and educate his daughter May." It appears, however, that eleven years ago her mother was granted a divorce, and the custody of this child; and since that time he has made no provision for her, and so far as he is concerned she is destitute and helpless in this world. If, then, this property is now distributed by the court among these orators, the chances are this child will never receive one penny. If, on the other hand, our construction of this will is correct, and this property belongs to those who are survivors at the time when the distribution is appointed, then if these two persons, nearly

* 5 Dana, 346. Wood v. Wood, 1 Met. (Ky.) 512.


Argument of Edward S. Ishani.


sixty years of age and infirm, should die before Mrs. Newberry, one-fourth of this whole property will belong to this child, who is not even a party to this bill; though having a distinct and adverse interest to the construction sought by it. \*. is manifest that, so far as she is concerned, the operation of the rule would be disastrous. Let me go further. There is a legacy given in this will of $5,000 to one of these claimants, Walter C. Newberry. Deducting from it his indebtedness to the testator, the balance of that legacy, about $700, was paid to his assignee in bankruptcy. Suppose this case had arisen at that time, and that assignee in bankruptcy were urging here, upon this doctrine of the acceleration of remainders, that oneeighth of this property ought to .be given to him. On the other hand, suppose, at your Honor's bar, the infant children of Gen. Newberry pleading the provisions of this will, and that under its terms the ownership of this property was in those who could answer the description of the donees at the time of the distribution. Suppose Mr. Dexter here, as their counsel, pleading before your Honor in behalf of these children, as against that assignee in bankruptcy, what would he say? Why, he would roar you, not "gently as anysucking dove." His voice would be heard like that of the prophet, from the fords of the Jordan to the river of Egypt, crying: Straighten out this crooked path, and make a road here for the passage of law and righteousness. This doctrine of the acceleration of remainders would assume a different complexion in his eyes, in that situation. Would Gen. Newberry, under this doctrine of the acceleration of remainders, think this property was his, and so belonged to his creditors and not to his children?

But the authority is express that even in an otherwise proper case, if the other difficulties were removed, there can be no acceleration of a contingent estate. Theobald* states the rule, and the cases which have been cited to your Honor here of Jul/ v. Jacobs,^ arid Lainson v. Lainson,\ and other cases relied upon for the orators, and then he says:

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In Rhodes v. Whitehead* Vice Chancellor Kindersley said:

"In this case we have in substance a devise to one for life, and after his death to "such of his children as shall attain twenty-one. Now, according to the plain im"port ofthat devise, the only persons to whom any gift is made by way of remain"der, are such children as shall attain twenty-one; and there is no gift whatever, "either expressed or implied, in favor of any child who does not attain twenty-one. "The effect is that until some child has attained twenty-one, the limitation over is "contingent. * * *

"I concur in the view taken by the Vice Chancellor, Wood, in Holmes v. Pres"cott, and by the Vice Chancellor, Wigram, in Bull v. Pritchard, and which was "also taken in the case of Festing v. Allen. It appears to me that that is the right "principle; and I must decide this case ill accordance wtlh those decisions."

In Shttm v. IIobbs,\ Vice Chancellor Kindersley said:

"This case comes on on the construction of a will, and the question is, whether a "certain share of the testatrix's residuary estate was a vested or contingent interest. "I have first to consider the precise language of the gift; and then, whether an "intention to create a vested interest is to be collected from other parts of the will. "Now, on the question whether a legacy or a residuary gift vests or not, there is no "contest about the general rule; if the legacy is given in the first instance, and "then there is a separate direction to pay at twenty-one or marriage, that is a vested "interest. If there is not an independent gift separate from the direction to pay, "but a mere direction to pay at twenty-one or marriage, that is not a vested interest. * *

"The question then is, is this a substantive gift; and in addition to it, a direction "to pay at twenty-one; or is the direction to pay at twenty-one the only gift."

He held the gift not vested by force of the general rule, and upon the mere form of the gift; and also held that no intent opposed to the rule appeared elsewhere in the will. Certainly this is the identical case before this court.

In Batsford v. Kebbc1l,\ the testatrix gave to Robert Endley dividends of stock until he attained thirty-two, at which time she directed her executors to transfer to him the -principal. He died before thirty-two.

Lord Loughborough said:

"I have read over the will, and have looked into the cases, and am confirmed in "my opinion. Upon the cases it appears that dividends are always a distinct sub"ject of legacy, and capital stock another subject of legacy. In this case there is' "no gift but in the direction for payment, and the direction for payment attaches "only upon a person of the age of thirty-two. Thcrejore he does not fall within the "description."

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