Helen and Elisabeth Burnets, v. Sir William Forbes, Baronet
Date: 9 December 1783 Case No. No 44.
A legacy was left to a person, “to be paid when he is sixteen years of age.” The legatee survived the testator, but died when only eleven years of age. Found that the legacy vested in the legatee a morte testatoris, and was due to his nearest of kin.
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A legacy granted by the father of Sir William Forbes, was conceived in the following terms: To Arthur Burnet, son to Lord Monboddo, I leave L. 500 ‘Sterling, to be paid when he is sixteen years of age.’
Mr Burnet the legatee survived the testator, but died when only eleven years old. The question therefore occurred, whether the legacy was due to his sisters, as his nearest of kin, though not exigible by them till the period at which he would have attained his sixteenth year; or whether, as altogether conditional, it had become ineffectual by his predecease? In an action at their instance, they
Pleaded, A referrence to a certain period in the age of a legatee has been deemed equivalent to a condition, where it is annexed to the constitution of the legacy. Thus, in the event which has happened, the bequest would have become void, if it had been devised in this manner:
“To Arthur Burnet, when he attains the age of sixteen, I leave L. 500 Sterling.”
But a different rule prevails, where the legacy itself is expressed in words absolute and unconditional, and the reference to the age of the legatee adjected to the term of payment only; as in the case of a testator, who bequeaths a sum payable or to be paid, when the legatee attains a certain age. In such instances it has been held, that the legacy vests a morte testatoris, though the term of payment, for some reason known to the testator himself, is postponed to a more remote period.
This distinction, which has been received into the English law from that of the Romans, and is likewise acknowledged by some of the writers on the law of Scotland, arises from the different modes of expression adopted by testators, l. 5. C. quando dies leg. l. 26. § 1. D. ad eund. tit.; Voet, l. 36. tit. 2. p. 2. et seqq.; Mantica, De conject. ultim, volunt. l. 11. tit. 23. p. 27. et seqq.; Blackstone, b. 2. c. 32. tit. 6.; Borough's Reports, v. 1. p. 226.; Bankton, b. 3, tit. 8. par. 42. p. 418. A legacy may with reason be thought conditional, where, as in the instance first given, its very existence is interwoven with a circumstance uncertain and contigent in its nature. But the same circumstance occurring only with regard to the term of payment, cannot detract from the validity of a legacy already completely established. In legacies of this last sort, therefore, upon the decease of the legatee, his representatives may insist for payment in like manner as he himself could have done. Hence the decision of this case must be the same, as if, in place of a reference to the legatee's attaining a certain age, the testator had appointed the payment to be made on the 20th April 1779, being the day on which the young gentleman, if alive, would have reached his sixteenth year. Nor is it of importance, that, in bonds of provision, a different interpretation has been given to clauses of this nature, because in such deeds, after the death of the child to whom they were granted, the inductive cause of the obligation is entirely removed.
Answered for the defender; It is an established rule with respect to legacies That dies incertus an extiturus sit necne, pro conditione habetur. Nor is it productive of any real difference, whether such an uncertain day be annexed to the constitution or to the term of payment of a legacy. A bequest to a person when he arrives at a certain age, cannot be due When he has not attained, and never can attain that age; and a bequest which is not payable till that event has taken place, must be in the same situation.
For the purpose, indeed, of reconciling some apparently opposite decisions, of the Roman lawyers, preserved in the Pandects, and which are merely exceptions, on account of particular circumstances, from the general rule, the commentators on the civil law have determined, that where the legacy itself, and the term of payment, are specified in different members of the same sentence, a reference to the age of the legatee annexed to the latter, may be considered, as not suspensive of the right, but merely of the term of payment. This distinction however, having no foundation but in a grammatical subtilty, has been rejected by repeated decisions of this Court, with regard to bonds of provision, in which the child's right, arising from the natural obligations of parents, ought to be deemed stronger than that of a legatee, whose claim flows from the bounty alone of the testator; Edgar against Edgar, No 1. p. 6325.; Belshes against Belshes, No 2. p. 6327.: Elliot against ——, No 10. p. 6342.; Executors of Bell contra Mason, No 6. p. 6332. Nor even in the law of England is the distinction adopted, except by the ecclesiastical courts, the adherence of which to the doctrines of civilians is peculiarly strict; Blackstone loe. sup. cit.
The Lords, moved chiefly by the authority of the Roman law, in which the distinction urged by the pursuers seemed clearly established, found, That the legacy in question having vested in Mr Burnet a morte testatoris, was due on his decease to the pursuers as his nearest in kin.
Lord Ordinary, Swinton.Act. Maclaurin, Blair.Alt. Hay Campbell, C. Hay.Clerk, Menzies.
Fol Dic. v. 3. p. 376. Fac. Col. No 135. p. 212.
