has that time to inquire, till which time they are not payable, so not to bear interest: which was agreed. A difference was offered to be made, that as there was a legacy to an infant, it could not be safely paid, and therefore could not bear interest. To which it was answered by the chief baron, that it might be safely paid into the hands of an infant, having proper evidence [376] of the payment, as in Wentworth's Executor, 313. And by Carter, it may be paid into the hands of the guardian, having evidence; but if he takes security from the guardian which should prove defective, there, as he doth not rely on the security the law gives, he must depend on that taken at his peril. Select Cases in Chancery, 72. Bunb. 240. June 22, 1743, Butler and Freeman. The grandfather of the plaintiff, by will, after directing his debts and legacies to be paid, gives all the rest and residue of his personal estate to his grandson the plaintiff at his age of 21, and if he die before that age, then to the defendant Freeman, whom he makes his executor. The plaintiff brought his bill for the interest of the residue, to be paid to him during his infancy. The defendant Freeman by his answer insisted, that the plaintiff is not entitled to it, unlesss he attains his age of 21; but that it ought to accumulate and if the plaintiff dies before 21, that it will equally belong to the defendant with the residue. The father of the plaintiff insisted, that the residue must be confined to what the testator left at the time of his death, and that the interest made after his death ought to be considered as an undisposed part, and go to him as next of kin to the testator, according to the statute of distribution: or if the court should be against him in this point, that then he is entitled to receive it for the maintenance of the plaintiff. By the lord chancellor Hardwicke: I am of opinion, that the plaintiff is not entitled to the interest that arises from this residue; and though the words rest and residue must be confined to what shall be found at the death of the testator, after his debts, funeral expences, and legacies are paid, yet that the interest ought to accumulate till the plaintiff arrives at his age of 21, and as often as it amounts to a competent sum to be placed out by a trustee appointed by the master. not quite so clear how the interest would go, if the accident should happen of the plaintiff's dying before 21, whether to the representative of the plaintiff, or to the defendant Freeman: but that is not necessary to be enquired into at this time. As to the father's claim, I am of opinion he has no right to the interest, because the testator has given all the rest and residue of his personal estate, so that he cannot be said to have left any part undisposed, and consequently can have no title to it as next of kin under the statute of distribution. For as the devise of the residue is contingent, it not vesting till the grandson's age of 21, I a am the interest is so likewise, and must accumulate in the mean time: nor can the father by the rules of this court entitle himself to it as maintenance for the infant, because it is given by a grandfather to a grandson upon a contingency of attaining his age of 21; and as nothing is said how the produce of it shall be applied, he is not entitled as a grandson to be maintained out of the produce. The law of nature obliges only fathers to maintain their children; and unless the child, from the mean circumstances of the parent, is in danger of perishing for want, the court will not direct the interest that shall be made of a contingent legacy to be applied for that purpose: So that unless the parent is totally incapable, or under particular circumstances, as having a numerous family of children, and is bordering upon necessity, the law of the land and of nature make it incumbent on the parent to maintain his child. In the case of Acherley and Vernon, 1 P. Will. 783, where the testator Mr. Vernon had left 6000l. to the plaintiff his niece, to be paid to her at her age of 21, and she insisted that the interest of this money ought to be allowed for her maintenance; lord Macclesfield was of opinion, that the interest in that cause ought to follow the principal, for it was a vested legacy, and payable at 21. But there it was a sum of money separated and detached from the rest of the estate, and a vested legacy; here it is a contingent one, and not a specific sum, but of the residue of his personal estate, which makes a difference between the cases; and the father likewise in the present case possessed of a good estate, and in considerable circumstances. Therefore his lordship decreed the interest which has arisen upon the residue of the testator's personal estate since his death, or which may arise, to be paid into the hands of a trustee, to be laid out in real or government securities as often as it shall amount to a competent sum. 3 Atk. 58. July 2, 1744, Heath and Perry. The testator by his will gave 1000l. a-piece to five brothers and sisters, (but who were no relations to him,) to be paid to them at their respective ages of 21, in case they should respectively attain that age, and not otherwise; and if any of them should happen to die before they attain their respective ages of 21, that then and in such case the legacy or legacies of 1000l. so given to them respectively shall be void. The legatees brought a bill for interest on their legacies. By lord Hardwicke: Cases of this kind how far a legatee, who is not entitled to the payment of the legacy immediately, shall have interest in the mean time, depend upon particular circumstances. [378] Some upon relationship, some upon the necessities of legatees, and most of them upon the particular penning of wills; and there is hardly one case which can be cited that is a precedent for another. Some things are certain in these cases; for if a legacy Payment when a sa tisfaction of legacy. is given generally at marriage, or at 21, then the vesting and (5) A legacy payable at any given time whatsoever, does not carry interest till that time, whether it is a vested interest or not: the time of payment must govern the commencement of interest, with this difference only, that a legacy given by a parent to a child shall carry interest from the death of the testator, on account of the obligation attaching on the person who gives it to provide a maintenance for his child. Crickett v. Dolby, 3 Ves. 10. Tyrrell v. Tyrrell, 4 Ves. 1. Coleman v. Seymour, 1 Ves. 211. But there is no exception in favour of a wife, as for a child, to the rule, that a legacy does not bear interest before it is payable. Stent v. Robinson, 12 Ves. 461. Lowndes v. Lowndes, 15 Ves. 301. Raven v. Waite, 1 Wils. C. R. 204. And in Wynch v. Wynch, 1 Cox, 433. An exception is made to the rule between parent and child, where maintenance till the infant attained 21 was provided out of another fund. When legacies are charged on personal estate, and interest is directed to be paid, the court formerly allowed legal interest, Moore v. Moore, 1746. 3 Atk. 402. But the rule that only 4 per cent. is allowed, where the will does not mention interest, on portions charged on land, as the land is good security for the principal, (ibid. Guillam v. Holland, 2 Atk. 343. Wood v. Briant, id. 523. &c.) has been of late years extended to legacies and portions charged on personal estates, ibid. 1 Ves. 311. acc. contra, 3 Atk. 432., 1 Ves. 99. 171. But where legacies were de vised payable out of money due on mortgage, when the same should be recovered, interest at the rate of 41. was decreed from the death of the testator, and it was held not to depend on the time when the money was recovered. Wood v. Penoyre, 13 Ves. 325. A parent paying a portion is presumed to intend performance of of portions the gift of a legacy, unless there is sufficient evidence to repel such presumption. Ellison v. Cookson, E. 1790, 2 Bro. C. C. 306. 3 id. 61. 1 Ves. jun. 100. Thus a portion given after a legacy is not a satisfaction of it where it is expressly given in satisfaction of a different claim, or where it is given absolutely, and the legacy under limitations neither can a legacy be a satisfaction for a claim aliundé, unless clearly expressed to be so intended. Baugh v. Read, 3 Bro. C. C. 192. But where a father having a legacy left to his daughter, gave her more than its amount on her marriage, and she acquiesced : Supposing interest to be due, another question arises, from what time the interest shall accrue. Concerning which, in the case of Jolliffe and Crew, E. 1701, it was determined as follows: viz. If a legacy be devised generally, and no time ascertained for the payment, and the legatee be an infant; he shall be paid interest from the expiration of the first year after the testator's death; but it seems a year shall be allowed, for so long the statute of distribution allows before the distribution be compellable, and so long the executor shall have, that it may appear whether there any debts: but if the legatee be of full age, he shall only have interest from the time of his demand after the year; for no time of payment being set, it is not payable but upon demand, and he shall not have interest but from the time of his demand: otherwise it is in case of an infant, because no laches are imputed to him. But where a certain legacy is left payable at a day certain; it must be paid with interest from that day. 2 Salk. 415. Prec. Cha. 161. be And in the case of Maxwell and Wettenhall, T. 1723; the following points were resolved, 1. If one gives a legacy charged upon land, which yields rents and profits, and there is no time of payment mentioned in the will; the legacy shall carry interest from the testator's death, because the land yields profit from that [379] time. 2. But if a legacy be given out of a personal estate, and no time of payment mentioned in the will; this legacy shall carry interest only from the end of the year after the death of the testator. 3. If a legacy be given, charged upon a dry reversion; here it shall carry interest only from a year after the death of the testator, a year being a convenient time for sale. 4. If a legacy be given out of a personal estate, consisting of mortgages carrying interest, or of stocks yielding profits half yearly; it seems in this case the legacy shall carry interest from the death of the testator. 5. If a legacy be brought into court, and the legatee hath notice of it, so that it is his fault not to pray to have the money, or that the money should be put out; the legatee in such case shall lose the interest from the time the money was brought into court: but if the money was put out, the legatee shall have the interest which the money put out by the court did yield. 2P. Will. 26. (c) during her life, the legacy cannot be demanded after his death. Seed v. Bradford, 1 Ves. 501. See 2 Vern. 484. 3 Atk. 76. (c) Where a parent gives a legacy to a child unprovided for, the child shall have interest from the day of the parent's death. Per sir L. Kenyon, M. R. in Cary v. Askew, 2 Bro.C. C. 59. And in Green v. Pigot, 1 Bro. C. C. 103., a legacy being given to a female infant, to be paid at 21, or marriage, with interest at 4 per cent. (but if she died before, to sink into the residue); lord Thurlow C. ordered the money to be paid into the Bank, in order to secure the legacy; and if greater interest was made, that it should be for the benefit of the As to the quantum of interest, the determinations have been various in the case of Guillam and Holland, Oct. 14. 1741; lord Hardwicke said, where a portion is charged upon land, and the will doth not mention interest, the court will not give any more than 4 per cent. though the legal interest is 5 per cent., and this rule hath also been extended to the cases of legacies and portions charged upon personal estate. 2 Atk. 343. In the case of Incledon and Northcote, Mar. 2. 1746; lord Hardwicke said at first, as no more had been allowed for many years than 4 per cent. interest to children for maintenance, he did not care to break through the rule; but afterwards, in consider[380]ation of the interest of money being altered lately, mortgages being then at four and a half, and several at five per cent., he ordered the children should have four and a half per cent. interest. 3 Atk. 438. In Bryant and Speke, Dec. 6. 1748; lord Hardwicke said, the general rule is, that legacies out of real estate carry one per cent. lower than legal interest; but if out of personal estate, because of the higher interest of money than land, it shall carry the legal interest, unless particular circumstances induce the court to vary therefrom. And this, he said, was in conformity to the ecclesiastical court, which gives legal interest upon legacies out of personal estate. 1 Vez. 171. In Beckford and Tobin, Nov. 4. 1749; it was said by the lord chancellor Hardwicke, that in general the court exercises as large a discretion as to the rate of interest upon legacies, where interest is not particularly given, as in any case; and that it is difficult to reduce it to a certain rule. The most general rule hath been, between interest of legacies charged on land, and on personal estate; and where nothing more, the court has said, that land never produces profit equal to the interest of money, and will follow the course of things, and give interest, where charged on land, one per cent. lower than the legal interest. So it was when the legal interest was at six; but in general, where a legacy is out of personal estate, the court gives five; and unless that is taken to be a sort of rule, there will be no distinction between them. Nevertheless, in the present case, the fund out of which the interest was to arise yielding no more than four, the court allowed but four per cent. 1 Vez. 308. Sitwell v. Bernard. The general rule is, that legacies (where no interest is given by the will) shall carry interest at four per cent. only from the end of a year after the death of the testator, child. But an executor cannot appropriate a legacy in this manner, without the direction of the court; for if the stock fall in value, his estate must make good the difference. Cowper v. Douglas, 1 Bro. C. C. 231. [See 378. note 5.] |