vey v. Harvey, 2 P. Will. 21. In Dormer v. Tomlinson, 4th of June, 1733, the testator gave a legacy of 100l. to a daughter; who brought her bill for the legacy; and the Court decreed the same with interest from the death of the testator: Ms. note of Mr. Capper. Then came Palmer v. Mason, and Green v. Belchier, 1 Atk. 505; which are not immediately upon the point; but in the latter the rule is expressly laid down. In Hearl v. Greenbank, 3 Atk. 695, 1 Ves. 298, there being an express provision for maintenance, it was held, that the usual principle did not apply.

*In Long v. Long, where less interest than 4 per cent. [* 286] was given, your Lordship would not give more (1).

As to the releases, when the daughter attained the age of twentyone in 1786, the question of their title to the interest was agitated. It is clear, she was aware, that question might be raised. The Court

(1) Long v. Long, Chancery, 14th November, 1796, upon exception to the Master's Report allowing interest upon the additional portions. By the settlement, made in 1785, 15,000l. was secured to the younger child or children of Sir James Tilney Long, if more than one to be divided at such times and in such proportions and subject to such provisos and limitations as Sir James Tilney Long should by deed or will direct, and in default thereof at twenty-one, or marriage of the daughters; with power to raise for maintenance and education such yearly sums as should amount to the interest of their respective portions, not exceeding 2 per cent. per annum, till they should respectively attain the age of fifteen, and afterwards at 4 per cent. until the portions should be payable, with benefit of survivorship. In 1793, Sir James Tilney Long by his will, reciting his power of appointing the 15,000l., appointed it among his children in manner following: in case he should have an eldest or only son and one or more child or children, then he appointed the said sum of 15,000l. unto and among such child and children other than such eldest or only son equally, if more than one; if only one, the whole to such one; and if daughters and no son, then as in the will mentioned; and he directed, that the portions of his said children respectively should be paid at such ages, days and times, and with such maintenance in the mean time, as was directed by the settlement, in case of no particular directions by him; and he declared, that in case he should have more younger children than one, the fortune or portion, which each of such children would be entitled to under the appointment therein before made, should be increased to 10,000l. it being his intention, that the fortune of every such child should be increased to 10,000l.; and he directed, that such additional fortune should be paid to his said children respectively at the same ages, days and times, at which their respective shares of the said 15,000l. would respectively become payable; and he devised all his estates in the counties of York and Northampton for securing (inter alia) the payment of the said additional fortunes. The testator left one son and three daughters.

The younger children pressed for interest at the rate of 4 per cent. upon the additional portions. On the other side it was contended to be an increase of capital only.

The Lord Chancellor held, that the two per cent. should be continued upon the increased capital.

As to the general rule his Lordship expressed himself thus:

"I take the rule of the Court to be, that in case of a legacy to a child, payable at twenty-one or marriage, if there is no provision, the Court will raise interest to supply what it is quite fair to construe a mere mistake. It is the duty of the parent to maintain the child: that he meant to execute it, is proved by the legacy. But I do not believe, a case can be found, where, the child having a provision, the Court has conceived that rule to apply; and a provision upon the circumstances such as is equal to maintain the child. The rule standing so, generally, I think I should be establishing a new precedent by giving 4 per cent. upon the additional 5000/."

favors such agreements in a family. Stapilton v. Stapilton, 1 Atk. 2: Pullen v. Ready, 2 Atk. 587.

Reply. The testator meant the same thing as to the interest of the legacies to these children, as he meant with respect to the interest of the residue given to his two eldest sons. If the mother had lived, she would have had 50l. a year from each of them. Suppose an application had been made to the Court upon her death, there must have been an appropriation of the legacies; which would have determined this question. It would have been impossible to contend, that they would not have been entitled to the surplus of the interest upon that appropriation.

Upon the second point, the principle is fairly laid down in East v. Thornbury, 3 P. Will. 126. The party releasing must mean to part with a right, he has, or to waive his claim, where he doubts, whether he has a right or not.

[*287]

Lord CHANCELLOR [LOUGHBOROUGH]. If there is any obscurity in the transaction, they must take it to themselves for not bringing the bill sooner. I much doubt whether there could have been an appropriation, upon the particular penning of this will; which gives an absolute discretion to the executors to continue all the fortune in trade and to make up annual accounts. In Hearl v. Greenbank this was one of the points made. The peculiarity of this will is, that there is a clause of survivorship between these legatees upon the death of one before the time of payment: if both should die, their legacies are given over to the two eldest sons, and in effect fall into the residue. Supposing 4 per cent. to be taken as the rate, in the case I put of the death of one, what is to become of that ultra the 501.? Would it go to the survivor, or be part of the estate of the deceased child? It requires a great deal more of expression in the will to make it follow the principal. It is clear, the testator knew, there would be a saving of that interest; and at the same time it is perfectly clear, nothing could vest in any of the children to bar the survivorship.

Dec. 14th. Lord CHANCELLOR [LOUGHBOROUGH]. The claim made by this bill is for interest upon two legacies of 2000l. each given by the will of a father to a younger child, and to one, of whom he supposed, as the fact was, that his wife was then enciente; who is the Plaintiff John Bower. The claim is made on the foundation of that rule of the Court, by which interest is allowed by way of maintenance in the case of a legacy given as a portion by a parent to a child; and the rule goes no farther than the case of parent and child (1); and in the cases, in which the Court has allowed that, it has proceeded upon the ground of a very natural presumption, that a father bound by natural duty to provide for the child, giving a legacy to that child, though he postponed the payment to a distant period, commonly the age of 21 or marriage, could not but intend, that that child should be maintained and therefore the Court gives

(1) Crickett v. Dolby, ante, 10, and the notes, pages 12, 13.

the interest, where there is an omission of any direction as to interest; and gives the interest for the maintenance.

In Hearl v. Greenbank, which was a very favorable case, as far as favor can weigh and raise an inclination in the Court, Lord

* Hardwicke upon the ground of an express maintenance [* 288] marked out for that child did not hold, that the general rule of the Court could apply; for giving an express maintenance barred the presumption, that an indefinite maintenance was intended; and barred the Court therefore from exercising that authority, it does exercise, to take according to the rate of interest the fund of interest for the maintenance of the child. The circumstances of that case were such, as would have induced the Court, if it had not been necessary to limit the doctrine, to give the child as much, as it could. The portion moved from the mother. The father ran away with her; and soon afterwards was separated from her; and all the fortune came from the mother's relations. She conceived, she had a right to dispose of a considerable real estate. She certainly had a right to dispose of her money; and she appointed 8000l. to this child. She could expect very little support from her father. The disposition failed as to the real estate. The mother had also provided maintenance at different periods according to the age of the child; and she gave away from the child the residue of the fortune: but Lord Hardwicke thought, where an express maintenance was provided, it was out of his power to raise the interest as a fund for maintenance (1).

If it was necesssary in the present case to decide upon the will, I should be inclined to hold, that the testator intended, nothing more should be taken out of the bulk of his fortune for the children, till the portions were payable, than the 50l. It goes alike to all the children. The two eldest sons, to whom the residue was given, he meant to continue the trade. To the two younger children, one not then born, the other very young, he gave defined portions. He left all the administration of his affairs to his wife and two brothers ; one of whom was his partner. He gave them the care and management of all his children; and this circumstance occurs; that with regard to these two portions of 2000l. there is survivorship between them, if one dies before 21 or marriage. It is quite clear, he intended, all he gave to that one, should go over to the other in case of death before 21 or marriage: but if the interest is allowed upon that, that interest necessarily would become part of the personal estate of the child dying. But it is not necessary to determine the point upon the construction of the will merely. I throw it out as a point, that might have been liable to a great deal of doubt, and was open to great argument: but these circumstances have occurred. The mother died. The children fall

[* 289]

(1) Ante, 17. See Bourne v. Tynte, 1 P. Will. 786. That case however met with some degree of disapprobation from Lord Hardwicke in Heath v. Perry, 3 Atk. 103.

under the care of the uncles. Each attains the age of 21; and with regard to the eldest of them, this question having been distinctly agitated in the family, she frankly settles an account with her uncles, and gives a full release. Two years afterwards, when the son, who went into the army, came of age, the same thing was done with respect to him. It is clear, both of them had been maintained. If I was of opinion, that they were entitled to the interest, I should be under the necessity in decreeing the interest to them to give a direction to inquire by whom they had been maintained, and what had been expended in their maintenance; and that account being had, if the expense had de facto cost more than the 501. a year, there must have been a deduction from the 80l. a year, the interest of their legacies. It is almost of necessity to suppose, more than 501. a year was expended as to the son, who went into the army; and most probably as to the daughter. But both being educated and maintained, and an account settled with their near relations, their uncles, the guardians appointed by the father, they come at the distance of eight years from the time the daughter came of age, and make this demand. They filed no bill, till both the uncles are dead. In strictness I should have been obliged to direct that inquiry, and to have made a deduction, if more than 501. had been expended. That inquiry is now totally impossible. Upon that ground therefore the bill ought to be dismissed. I do not think, it is a case for costs.

THAT interest upon a legacy can be allowed, by way of maintenance, only when the legatee is the infant child of the testator; or when such testator, though not actually the parent, has put himself in loco parentis; see, ante, the notes to Crickett v. Dolby, 3 V. 10.

ALLEN v. CALLOW.

[ROLLS.-1796, DEC. 15, 19.]

THE rule, that legacies to the same persons by different instruments shall be accumulative, repelled by internal evidence of an intended substitution. (a) Legacy to A., in case she shall be living with the testatrix at her decease, with limitations over upon the death of A. before twenty-one or marriage, fails by the death of A. in the life of the testatrix, [p. 294.]

ELIZABETH METCALF by her will, dated the 1st of April, 1774, gave to Thomas Taylor and John Rushworth the sum of 500l. to be invested in the public funds in trust to pay the interest to Elizabeth Bousfield for life for her sole and peculiar use; and from and immediately after her decease to transfer the principal to and among all

(a) See 2 Williams, Executors, 925; see also, ante, note (a) to Moggridge v. Thackwell, 1 V. 464; Ricketts v. Livingston, 3 Johns. Ca. 101; Dewitt v. Yates, 10 Johns. 158.

[* 290]

and every the child and children of Elizabeth Bousfield living at her decease, and to the child and children of any deceased * child or children, to take the shares of the deceased parents; and if she should die without leaving issue, then to transfer the same to and among all and every her brothers and sisters living at her decease; and similar legacies were given for the benefit of the two sisters of Elizabeth Bousfield and their children. The testatrix gave to Jane Ward the sum of 5007. in case she should be living with her at her decease; otherwise that sum was directed to become part of the residue of her personal estate. Then reciting that "Catherine Hobbs, an infant, resides with me now, in case the said Catherine Hobbs shall happen to be living with me at the time of my decease, but not otherwise," she gave to the trustees the sum of 500l. in trust to lay out the same in the funds, and to pay the interest for the maintenance and education of Catherine Hobbs, and to transfer the principal to her at her marriage or age of twenty-one for her own benefit; with limitations over to her father and mother and their children in case of her death under twenty-one and unmarried.

Codicil dated the 23d of April, 1776. "Whereas I have by my said will given Miss Jane Ward, who then resided with me as a companion, 500l. in case she should happen to be living with me at the time of my decease; but the said Jane Ward having left me, that legacy is at an end; and I do hereby revoke the same; and instead thereof I do give the like legacy or sum of 500l. unto Miss Sarah Allen now residing with me as a companion, in case she shall be living with me at the time, but not otherwise;" and in case Sarah Allen should not be then living with her, she gave that legacy over. Then reciting the legacy given by the will for the benefit of Catherine Hobbs, she gave the trustees "the farther sum of 500l. upon the like trusts for the benefit of the said Catherine Hobbs, to be paid her at such time and manner as the sum of 500l. before mentioned is by my will directed to be paid to her;" and in case of her death before she is entitled to receive the additional sum, then upon the same trusts and for the same persons, as directed by the will concerning the legacy of 500l. thereby given.

Codicil dated the 10th of March, 1780. The testatrix recites the legacy given by her will, in case Catherine Hobbs an infant "shall happen to be living with me at the time of my decease, but not otherwise;" and the legacy "of the farther sum of 500l." given by the codicil upon the like trusts; and she confirms the said

*

several bequests of "the said several sums of 500l. and [*291] 5007. making together 1000l." She then declares the

trusts of the said fund for the benefit of Catherine Hobbs till her marriage; and after her marriage for the benefit of her and her husband and children; and if she should die without leaving issue, then the trusts declared by the will and codicil as to the said several sums.

upon

Codicil dated the 21st of May, 1785. The testatrix gave to