Huston's Appeals , 9 Watts 472 ( 1840 )

The opinion of the court was delivered by

Rogers, J.

A legacy payable at a future day does not carry interest until after it is payable, unless in the case of a legacy to a child, when the parent has made no other provision for its maintenance. And it seems that the exception does not extend to the case of a grandchild; Lupton v. Lupton, 2 Johns. Chan. 628; Heath v. Perry, 3 Atk. 101. In this will, although the payment of the legacies is postponed until the grandchildren severally attain the age of twenty-one years, and consequently without some modification or qualification would come within the principle above stated, yet the rule is not applicable when the testator has manifested a different intention. After the several bequests to his grandchildren, he adds, “ I allow that the legacies bequeathed by me to my three first named grandchildren shall be lent out by the executors of this will as soon as it shall be received by them, so that it shall bring interest until my said grandchildren shall severally become of age, when they are to receive the amount.” This language is too unequivocal to be misunderstood; it clearly indicates the intention of the testator, that the grandchildren, who appear to have been the principal objects of his bounty, should receive not only their respective legacies, but that, in addition, they should be entitled to interest. But from what time is the interest to be computed? The testator does not say the precise period when it shall commence, but his intention may be collected from the whole will. He directs the executors to put the money out at interest as soon as it should be received. This depends upon the sale of the property which they were ordered to make. It was the duty of the executors to carry out his intention by making sale of the property, and raising the necessary funds in a reasonable time; and what is a reasonable time, by analogy, may be taken to be one year from the death of the testator. The general rule of giving interest to the legatee from the expiration of the year, is not to be extended or controverted upon slight inferences of intention, nor will it yield to the impossibility of getting in the estate so as to pay the legacy within the year allowed for that purpose. And even though the legacy is to come out of a part of the testator’s estate, which cannot be recovered for a long time after the year, and the testator directs the legacy to be paid when the money which is to constitute it can be recovered, still the payment of interest, if practicable, or at least the computation of it, will commence from the end of the year after the testator’s decease. Wood v. Penoyre, 13 Ves. Jun. 325; 2. Roberts on Wills 115. The testator could not anticipate that difficulties would be thrown in the way of this arrangement. He directs part of the property to be sold, with the .assets of his wife, and on her death, in May 1822, all obstacles, if any existed on her part, were removed. The other property was ordered to be sold by the executors as soon as they could make sale thereof to advantage. Immediately after the death of the testator a caveat to the will was entered, w.hich was not disposed of-till the 24th of March 1824, upwards of three years after the death of the testator. In the intermediate time, for some reason which has not been explained, administration pendente lite was not granted. On the withdrawal of the caveat, there was nothing, so far as appears, to prevent an immediate sale of the whole estate; but sale of part of it was not made until the 1st of April 1833. When the purchase-money was actually received no where appears.

It is insisted that, until the money is received, these legacies do not carry interest, and if we disregard the intention of the testator, and give the will a literal construction, this would be a legitimate conclusion. But this would be sinning against a cardinal rule of construction, for the objection which has not been met is, that it would defeat the intention of the testator, which manifestly is, that the legacies should bear interest from a reasonable time, viz: one year after his death; and that the interest should accumulate for •the benefit of the legatees. It cannot be rationally supposed that it ever entered into his mind, that, from any combination of circum•stances, this consummation should be indefinitely postponed, or even delayed for several years after his decease. The precept that equity considers that as done which ought to have been done, here 'comes into play. Where the residuary legatees wish to deprive •other legatees of that' which, under ordinary circumstances, they would be clearly entitled to, they are bound to show that the delay in the sale arose from some of the causes named in the will:—either 'that the widow refused to consent to a sale, or that the property 'could not be sold. But, instead of these contingencies, which alone were in the contemplation of the testator, the reasons of the delay are left to conjecture. It is not enough to allege the probability that it may have been caused by a combination of circumstances—the litigation which took place, and the depressed state of the value of real property. It adds to the force of these considerations that it •does not appear that the residuary legatees are injured. They are ■placed in no worse situation, and it is difficult to perceive the justice in making the delay, which was not caused by any fault of the ■legatees, operate exclusively for the benefit of others, and in prejudice of their rights alone. The administrator had the control of all •the estate of the testator from 1825, and he could at any time have raised an amount more than sufficient for this purpose by sale; and although it was not done until 1839, yet he received the rents and profits of the land, and the dividends of stock, to'an amount exceeding the interest, all of which was accounted for in the administration account, and which contributes and goes to swell the sum total of the estate. It appears, from the opinion of the court, that the legatees claim interest only from the first of April 1825, which made • it unnecessary for them to decide that they were entitled to it before • that time. Interest is, however, computable from one year from the death of the testator.

The appellant also alleges that the court erred in disallowing interest, on the pecuniary legacies, to James Hiester and his children, from one year from the death of the testator. To this claim there is no reasonable objection, except that it appears that the only question which was submitted to the court was, whether the three first named legacies bore interest, and from what time? The • case seems to have been argued with the concession that the other legacies had been paid, and for that reason the funds having been exhausted, it became unnecessary to allow interest before 1825. • But as it is possible that in this some mistake may have been com•mitted, and we are willing that justice should be done, we think • it right to delay entering the final decree until the fact of payment be ascertained. If, on investigation, it should be found that the whole or a part of these legacies remains due, there can be no difficulty in adjusting the proportion which each will be entitled to receive on the principles which have been indicated.

Decree affirmed.