only for default of payment, no interest can commence, unless where payment is delayed. It is impossible to contend, that the executor is bound to pay before he is ordered by the testator, unless under some very particular circumstances, which I will state. The rule is, that no interest is to be paid, till the time arrives, at which payment is ordered, except in one case only, that of a child (1), but upon quite a different ground. In that instance the Court does not postpone the payment of interest till a year after the death of the parent; for the Court considers the parent to be under an obligation to provide not only a future but a present maintenance for his child, and therefore holds, that he could have postponed the time of payment only from the incapacity of the child to receive, but that he never meant to deprive him of the fruit of the legacy; which fruit is the only maintenance, and which maintenance he was bound to provide. But what occasion is there for all this contention in favor of the child, if every one is entitled? Another case is, where a legacy is ordered to be paid at the age of twenty-one years, and the legatee dies before the time: shall the executor wait, till the legatee would have been twenty-one, or have it immediately? It depends upon the question, whether interest was payable or not; if it was, the executor shall have it immediately: otherwise he must wait. It is admitted for the Plaintiff, that if this legatee had died, her executor could not have the legacy, till the legatee would, if she had lived have attained the age of twenty-one. There never could have been such an absurdity as the notion, that you must wait till that time, and then have the subject with the interest.

[*14]

I believe it is truly stated, that this identical point has not *been one, that the Court has determined upon. I have looked into all the cases; and I believe the Counsel are right in that. The first case upon the subject is, that cited from 1 Ch. Ca. 60: which is a very old one; in the time of Charles the Second, determined by Justice Archer in the time of Lord Clarendon, and long before the rules, upon which the Court has since acted, were settled. The executor demurred. It did not appear, whether the legatees were children or not. The Report says, "The Defendant demurred; for that the Plaintiffs were under age, and their legacies were not to be paid till twenty-one, and so had no cause of suit." Now according to the present course of the Court there was a cause of suit to impound it. I do not know who the Reporter was: but there is this note added by the Reporter; "No doubt equity may interpose and order the payment as they see fit; besides the legacy is debitum in præsenti though solvendum in futuro; and as it shall go to his executors in case of his death, a fortiori, it shall be paid to him to support his life." This is a very inaccurate case. The legatees had a clear right to have their legacies secured. That

(1) Post, Mitchell v. Bower, 283; Tyrell v. Tyrell, vol. iv. 1; Chambers v. Goldwin, Lomax v. Lomax, xi. 1, 48; Ellis v. Ellis, 1 Sch. & Lef. 1; Raven v. Waite, Pelt v. Fellows, 1 Swanst. 553, 561, n.

seems the only case in point; and see, whether it has been followed in any one instance. The rule, that has prevailed, is laid down so early as in an anonymous case, 2 Vern. 199, a book of no great accuracy, which however states what I must admit to be the rule of the Court at this time: but he refers to two cases, from which I do not think it can be extracted; Clobberie's Case, 2 Vent. 342, and Sanders v. Earle, 2 Rep. Ch. 98. I must admit, the principle of those two cases does not decide the point, for which they are referred to. The latter was a gift to a daughter, and goes a great way to show, that the administrator of the child, who died, was to wait till the time, at which that child would have received the legacy. I cannot admit the reasoning, that the administrator is to wait merely to receive it with interest. The case in Ventris is very shortly reported. Perhaps these cases do not mean to decide exactly this case: but the inference from the reason and principles of them is the two rules laid down, and which have been uniformly, I believe, acted upon since that time. With regard to the other cases, the only one, that has in any degree weighed with me as at all intrenching upon this, is Acherly v. Vernon. That case must be admitted to have afforded some ground of argument for what is now contended; and Lord Macclesfield did find himself under some difficulty to reconcile that case with the principles, which I suppose he must have admitted at the time. If it was a general rule, what occasion was there for him to endeavor to raise special circumstances? whereas he did reason upon the particular circumstances, and thought, that upon them he was bound to give interest up to that time, when the legacy would be paid. Whether he was right or wrong in applying the special circumstances, I do not say: but certainly he did not think it a general rule.

[* 15]

Then see what Lord Hardwicke says in Heath v. Perry, and Hearl v. Greenbank, 3 Atk. 716. 1 Ves. 307; and it is very material to see that case in both the Reporters; for both concur in Lord Hardwicke's language. He lays down this rule as clearly established; that a legacy payable at a certain time does not carry interest till that time; and he states, that Acherly v. Vernon was founded singly and solely upon the particular circumstances; and Lord Hardwicke was very cautious in laying down a rule, unless it was a clear rule. In Heath v. Perry, and Hearl v. Greenbank both the Reporters concur in making him lay down this rule over and over in such terms, that it is impossible for them not to have understood him; and he reasons from that. I cannot therefore suppose that both these Reporters mistook him. What has been done since? I never heard it doubted before. It has been acted upon in various cases, but is not reported. Look at the case of Laundy v. Williams, and those subjoined in Mr. Cox's note. See what is there supposed to be the rule in this case. Apply that to what is there determined; and see, whether it has not been clearly and uniformly acted upon, though perhaps it has not been made a point, upon which the Court

[*16]

has made a decision. In Roden v. Smith a legacy of 500l. was given to a grandchild, payable at twenty-one, with an allowance of 117. a year for maintenance till four years old, and 167. a year afterwards till twenty-one. Upon the death of the grand-child under twenty-one the question occurred, whether the administrator should be paid the money immediately, and so be entitled to the interest from the death of the infant, or wait till such time as the infant would have attained twenty-one. I cannot believe, that at that time he is to receive it with interest. A distinction is taken in that case between a person claiming the legacy by a limitation over and the administrator of the infant; and it is laid down, that the former takes immediately on the death of the infant, but the latter must wait till the time, at which the legacy is payable, unless the whole interest is given in the mean time. This was followed by Green v. Pigot (1), in which the very same doctrine is recognized by Lord Thurlow. I never had any doubt upon it. I have looked into all the cases. None of them contradict this except that one in the time of Charles II. Therefore I hope this will be considered as a settled point, upon which executors may not be put to the expense of defending, unless at the peril of costs. The rule is clear, that 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 upon the person, who gives it, and because it is in nature of a portion; therefore interest in the mean time is added, though it is not given in express terms; and Acherly v. Vernon was determined upon the idea, that the testator put himself in loco parentis. All the other cases upon the point, whether the administrator of the legatee is entitled to the legacy immediately or must wait till the period, at which the legatee would have been entitled to it, depend upon this.

I am loth to encourage suits: but as this is a family cause, I am not inclined to give costs, though I consider this as a very clear point. The Plaintiff might have taken the legacy and have come for the interest only. It does not appear what the property is. Declare the legatees entitled to their legacies with interest to be computed only from the time of their attaining the age of twenty-one respectively. Let the bill, so far as it seeks interest prior to that time, be dismissed: but as it is alleged to be a family suit only to take the opinion of the Court, the same solicitor being employed for all parties, I will give costs.

I think a wife would certainly come under the same exception as a child (2). *I do not find it in the books.

(1) Bro. C. C. 103.

[* 17]

(2) This dictum over-ruled, post, Stent v. Robinson, vol. xii. 461; Lowndes v. Lowndes, xv. 301; Raven v. Waite, 1 Swanst, 553. [It has been decided in New

It can hardly ever happen, that a wife has not some other provision; and that may make a difference in the case of a child. If maintenance is given generally to the child, so that the whole may be exhausted by the maintenance, that shows the testator meant it to carry interest: but if a partial maintenance is given, as if an annual sum less than the interest is given for maintenance, the child shall have no more; and the executor paying that sum shall have all the rest.

1. INTEREST, unless expressly given from an earlier date, is allowed, even in respect of an immediate legacy, only from the end of the year after the testator's death; before which time, if no other period is assigned by the will, payment of the legacy cannot be demanded: Gibson v. Bott, 7 Ves. 96: and interest on a legacy, unless there is a special provision made for it, is allowed for delay of payment only: Hearle v. Greenbank, 3 Atk. 716: therefore, when a legacy is given, to be paid at any particular time, it will not carry interest before that time. Anonymous, 2 Freem. 207. Where, indeed, the legacy is not a general pecuniary one, but a specific bequest of a corpus, that is an immediate gift, passing both the fund and its produce, from the death of the testator. Raven v. Waite, 1 Swanst. 557; Kirby v. Potter, 4 Ves. 751; Barrington v. Tristram, 6 Ves. 349. And, when a legacy is given to the infant child of the testator, interest may be payable immediately, if there is no other fund applicable for the proper maintenance of such child: Lowndes v. Lowndes, 15 Ves. 304; Cary v. Askew, 1 Cox, 244; Harvey v. Harvey, 2 P. Wms. 22: but, where other means of support are provided for the child, there, if the legacy be payable at a future day, it will not carry interest until the day of payment comes, more than in the case of a legacy to a perfect stranger: Wynch v. Wynch. 1 Cox, 435; Ellis v. Ellis, 1 Sch. & Lef. 5; Heath v. Perry, 3 Atk. 102; Hearle v. Greenbank, 3 Atk. 718: and though the executor may be required to secure the fund, he cannot be called upon for interest before the day mentioned for payment of the principal. Tyrrell v. Tyrrell, 4

Ves. 5.

2. The general rule as to non-payment of interest upon a legacy, before such legacy becomes due, must not be broken in upon by an exception in favor of an adult legatce, however nearly related to the testator; Raven v. Waite, 1 Swanst. 558; and, as illegitimate children are, in legal contemplation, no more than strangers, (Lowndes v. Lowndes, 15 Ves. 304,) it seems, notwithstanding what was intimated obiter in the principal case, that interest cannot be allowed, by way of maintenance, in favor of such legatees: Perry v. Whitehead, 6 Ves. 547; unless it can be collected, from the will, that the testator intended to give interest. Beckford v. Tobin, 1 Ves. Sen. 310; Ellis v. Ellis, 1 Sch. & Lef. 6; Raven v. Waite, ubi supra. Even in the case of a grand-child an executor must not take upon himself to pay interest upon a legacy by way of maintenance, when it is not expressly provided by the will; for, though it was said, in the principal case, that Courts of Equity should struggle in favor of the grand-child, yet, it seems, there must be something more than the mere gift of a legacy, something indicating that the testator put himself in loco parentis to justify a Court in decreeing interest for a grand-child's maintenance. Perry v. Whitehead, 6 Ves. 547; Rawlins v. Goldtrap, 5 Ves. 443; Hill v. Hill, 3 Ves. & Bea. 186. But, of course, even when a legacy to a grand-child is not payable till he comes of age, still maintenance may be allowed for his support during his infancy, provided the parties to whom the legacy is given over, in case of the infant's death, are competent and willing to consent: Cavendish v. Mercer, 5 Ves. 195 (in note): this may also be done where the fund is given among the children of a family, who, being infants, cannot consent, but who have all an equal chance of survivorship, and an equal interest in having maintenance allowed: Greenwell v. Greenwell, 5 Ves. 199;

York that a legacy to the widow in lieu of dower, draws interest from the death of the testator, where he has provided no other means for her support during the first year after his death. Williamson v. Williamson, 6 Paige, 298.]

Collis v. Blackburn, 9 Ves. 471; Errington v. Chapman, 12 V. 25; Fairman v. Green, 10 Ves. 48: nor will it be any objection, that other children may possibly come in esse after the order made. Errat v. Barlow, 14 Ves. 204; Haley v. Bannister, 4 Mad. 280. But, if the will contain successive limitations over, to parties between whom this privity does not exist, and under which limitations persons not in being may become entitled, it is not sufficient that all the parties then living, and presumptively entitled, are before the Court; for none of the living may be parties eventually entitled to the property. Marshall v. Holloway, 2 Swanst. 436; Ex parte Kebble, 11 Ves. 606; Errington v. Chapman, ubi supra; Lomax v. Lomar, 11 Ves. 48.

3. Notwithstanding the opinion thrown out by Lord Alvanley in the principal case, it seems to be now settled, that no exception is to be made, in favor of the testator's wife, to the general rule, that a legacy does not bear interest before it is payable. Lowndes v. Lowndes, 15 Ves. 304; Stent v. Robinson, 12 Ves. 461; Raven v. Waite, 1 Swanst. 559.

4. The observation as to the rule of not supplying a surrender in favor of a natural child, is no longer important. The statute 55 Geo. III. c. 192, renders every disposition of copyhold estates by will effectual, (supposing the will to be good in other respects,) without the necessity of a previous surrender to the uses of the testator's will.

5. Where a bequest is made to a legatee at his age of twenty-one, or any other specified age, or, if he attain such age, this is such a description of the person who is to take, that, if the legatee do not sustain the character at that time, the legacy will fail; the time when it is to be paid is attached to the legacy itself; and the condition precedent prevents the legacy from vesting. Parsons v. Parsons, 5 Ves. 582; Šansbury v. Reed, 12 Ves. 78; Errington v. Chapman, 12 Ves. 24. But if the legacy be to an infant, payable at twenty-one, the legacy is held to be vested; the description is satisfied, and the other part of the direction refers to the payment only. The distinction is borrowed from the civil law, but is adopted as to personal legacies only, not as to real estate; and is spoken of as a rule neither to be extended nor approved. Dawson v. Killett, 1 Brown, 123; Mackell v. Winter, 3 Ves. 543; Bolger v. Mackell, 5 Ves. 509; Hanson v. Graham, 6 Ves. 245. The case of Meredith v. Tooke, decided by Lord Hardwicke, in Hil. T. 19 Geo. II. (10th Feb. 1745,) appears from Mr. Forrester's Ms. to have been as follows. Mary Lethieullier by will devised in these words, "I do hereby order my executrixes hereinafter named to lay out the sum of 2,4001. in the purchase of government securities within one month after my decease in their own names, and that they do pay the interest or dividends thereof to my grand-son William Lethieullier during the term of his natural life, and from and after his decease then I will and direct my executrixes to deliver and transfer the said securities which shall be so purchased with the said sum of 2,400l. to the children of my said grand-son William Lethieullier to be divided amongst them share and share alike as they shall respectively attain his or their age of 21 years if sons, or if daughters at their ages of 21 years, or marriage, or if there shall be but one child of my grand-son, then I give the whole security to such one child at his or her age of 21, or marriage. And I direct that the dividends or interest of the said 2,4001. shall, from the death of my said grand-son, be from time to time, as soon as it amounts to 1007. laid out in the purchase of good government securities, all which I direct shall be also delivered to the child or children of my said grand-son, in the like manner as the securities to be purchased with the said sum of 2,4001. are hereby directed to be, and in case of the death of any of the said children before the age or marriage before mentioned, I will that their respective shares shall go to the survivor of them." The testatrix died in the life of her grand-son William, who died leaving issue one son John. John died when about five years old, and his mother, the plaintiff in the suit, took out administration to him. The question was, whether the said bequest of the 2,400l. vested in John, and his mother, consequently, as his administratrix, was entitled to it, or whether it was a lapsed legacy by his dying under age. Lord Hardwicke said, "I shall premise that the whole clause on which this question depends, consists of a direction to the executrixes. The common distinction has been made, that where a legacy is given at 21, it is not vested; but if given absolute, to be paid at 21, it is vested. I shall first consider the latter part of the clause, where the testatrix puts the