question is, whether it is clear the testator intended, that his wife should have no power to dispose except for the maintenance of his daughter Anne, and meant to create a trust of all the rest. Therefore it is merely a question of construction upon the words "what shall be left;" whether they mean only what shall be left after providing for his daughter Anne. I think Wynne v. Hawkins as strong as this. It might have been equally contended in that case, that he meant all after she had expended what was necessary for her own income. In this it must be contended, that if a bill had been filed, the property would have been impounded, I am clearly of opinion, that I should go too far, if I did not hold, that he left it in the discretion of his wife to give to his children any part she might not dispose of. I construe the words larger than the Plaintiffs; that it is an absolute gift to his wife of any part of this property to any use she might think fit, clothed only with a trust for his daughter Anne, who, I admit, could have filed a bill: but no one else could.

Dismiss the bill without costs, so far as it prays an account of the personal estate of the father.

According to what the Lord Chancellor in Malim v. Keighley says of Cunliffe v. Cunliffe, if the mother could spend it, there is no trust; otherwise, if she could not: therefore Cunliffe v. Cunliffe is an authority for this decision.

THAT words of recommendation in a will have, generally, the force of an imperative direction, and create a trust, see, ante, note 2, to Bull v. Vardy, 1 V. 270, and note 4, to Moggridge v. Thackwell, 1 V. 464: and for the qualifications of that general doctrine, see note 2, to Pigott v. Bullock, 1 V. 479.

CRICKETT v. DOLBY.

[ROLLS.-1795, DEC. 7, 9.]

A LEGACY from an uncle to a niece, to be paid at twenty-one or marriage, does not carry interest before the time of payment. (a)

The Court will not supply a surrender for a natural child; but, if it has a legacy from the father payable at twenty-one, will allow maintenance, (b) [p. 11.] Legacy to be paid at a particular time is debitum in præsenti solvendum in futuro and vested, [p. 13.]

Legacy from a parent to a child bears interest before the time of payment, and from the death of the testator; and is the only instance, [p. 13.]

Legacy payable at twenty-one; before which time the legatee dies: if interest is payable, his executor shall have the legacy immediately: if not, he must wait till the legatee would have been twenty-one, and cannot then have the interest, [p. 13.] Legacy payable at twenty-one; before which time the legatee dies: a person

(a) Where no time of payment is provided for by the terms of the will, a pecuniary legacy is payable at the end of the year after the testator's death, and not. before. Sullivan v. Winthrop, 1 Sumner, 12; Eyre v. Golding, 5 Binney, 475; Shobe v. Carr, 3 Munf.; Swearingham v. Stull, 4 H. & M'Hen. 38; Marsh v. Hague, 1 Edw. 175; Brooke v. Lewis, 6 Mad. 358. As a corollary from this rule it has been as constantly held, that interest is not payable upon any pecuniary legacy (unless provided for by the will) until after the year is elapsed; or, if the will fixes a period for payment, until that period is elapsed; for interest cannot. be claimed except for a demand actually due, and from the time it becomes due. 2 Roper Leg. by White, ch. 15, p. 172; ch. 20, p. 184; Davis v. Swan, 4 Mass. 208; Birdsall v. Hewlett, 1 Paige, 32. There are exceptions, however, to the general rule. One is, when a legacy is given by a parent, to an infant child, who is otherwise unprovided for; for then, upon the presumed intention of the parent to fulfil his moral obligation to maintain his child, interest will be allowed from the death of the testator as a maintenance for the child, where no other fund is applicable for such maintenance. And this is equally true, whether a future time is fixed for the payment of the legacy, or no time is fixed for it by the will. But if other funds are provided for the maintenance of the child, then interest is only allowable as in other cases. The same doctrine, which applies to parents, is also applied to testators placing themselves in loco parentis; but the exception is not allowed in favor of a legatee standing in the relation of a wife, or natural child, or grand-child, or niece, as such, any more than in favor of a stranger, unless there can be farther engrafted upon it a parental relation assumed by the testator. Sullivan v. Winthrop, 1 Sumner, 14, and English cases cited, which will be found in Hovenden's note at the end of the case; Lupton v. Lupton, 2 Johns. Ch. 614.

Where the testator became bound to the parish for the support of an illegiti mate child of his son, and he made weekly payments until his death; it was held that he had placed himself in loco parentis, and that interest was payable from the testator's death on a legacy given by him to the child, though made payable on attaining twenty-one. Rogers v. Scutten, 2 Keen, 598. See, also, on the subject of interest on legacies, Ingraham v. Postell, 1 M'Cord, Ch. 98; Codgell v. Codgell, 3 Dessaus. 387; Ingraham v. Powell, 1 M'Cord, Ch. 94; Gillon v. Turnbull, Id. 148; Bitzer v. Hahn, 14 Serg. & R. 238; Van Bramer v. Hoffman, 2 Johns, Ch. 200; Miles v. Wester, 5 Binn. 477; Glen v. Fisher, 6 Johns. ch. 33; Knight v. Knight, 2 Sim. & Stu. 490; Quarles v. Quarles, 2 Munf. 321; 2 Williams, Executors, 1020-1029; Stephenson v. Axson, 1 Bai. Eq. 274; Smith v. Field, 6 Dana, 364. But there is nothing to prevent executors from paying legacies, if they choose, within the year after the death of the testator. Angerstein v. Martin, Turn. & Russ. 241.

(b) Where a legacy is given to a natural child, with directions to apply the interest for his maintenance, the interest is payable from the death of the testator. Dowling v. Tyrell, 2 Russ. & M. 343.

claiming by limitation over takes immediately: but the administrator of the infant must wait till the time, at which the legacy is payable, unless the whole interest is given, (c) [p. 16.]

A wife as well as a child within the exception to the rule, that a legacy does not bear interest, till it is payable. (See n. 12,) [p. 17.]

Legacy from parent to child payable in futuro: if maintenance is given generally, it shall carry interest: but if an annual sum less than the interest is given for maintenance, the executor paying that shall have the rest, [p. 17.]

THIS case arose upon the following clause in a will: "I give and bequeath to my two nieces Sarah Alexander Crickett and Susan Alexander Crickett, daughters of my sister Sarah Alexander Crickett, the sum of 500l. a piece, of lawful money of Great Britain, to be paid to them respectively at their respective ages of one and twenty years or day or days of marriage, which shall first happen." The testator appointed his brother executor and residuary legatee.

Sarah Alexander Crickett having attained the age of twenty-one years, filed the bill for an account of the personal estate of the testator; and the question was, whether the Plaintiff and her sister were entitled to interest upon their legacies, before they attained the age of twenty-one years.

Mr. Graham and Mr. Stanley, for the Plaintiff and her sister, the legatees. This point has never been determined. Where a legacy is given immediately, payable at a future day, the principle is, that it is debitum in præsenti solvendum in futuro. It is a debt from the time it is given; and being a debt, it is as a severance of so much of the property; and then from the time it actually vested, that with the produce is the property of the party; and though they cannot except in the case of parent and child insist upon receiving the interest, before the principal is due, yet at the day of payment they may insist upon the produce. In 1 Ch. Ca. 60, infant legatees called upon the executor for maintenance, suggesting that they had none: the executor demurred, because the legacies were not payable till twenty-one; and the demurrer was over-ruled. I admit, the modern cases allow it only in the case of a provision by a parent for a child. Nicholls v. Osborn, P. Wms. 420. The only distinction between that case and this is, that was the case of a residue: but that makes no difference. In Palmer v. Mason, 1 Atk. 505, and Heath v. Perry, 3 Atk. 101, Lord Hardwicke proceeds entirely upon the ground of the legacy being vested or not. There are several au

thorities that whenever a legacy is clearly vested, though [ * 1 1 ] to be devested by a subsequent event, the party shall have interest without express words, and that it is not confined to the case of a parent giving a provision to a child. Acherly v. Vernon, 1 P. Wms. 783; Bourne v. Tynte, cited there. Chaworth v. Hooper, Hawkins v. Combe, 1 Bro. Ch. Ca. 82, 335. There are many cases, in which provisions of this sort may be considered as

(c) 2 Williams, Exec. 1001. But if a legacy be payable out of land at a future day, although given with interest in the mean time, if the legatee die before the day of payment, the Court will not direct the legacy to be raised until the time for payment arrives. Gawler v. Standswick, 2 Cox, 15.

portions. This is a legacy by an uncle, absolute, not given over, and appears severed from the bulk of the estate, the residue being disposed of. In Churchill v. Speake, 1 Vern. 251, it carried interest, though there had been no demand.

af

Mr. Lloyd and Mr. Alexander, for the executor and residuary legatee. Palmer v. Mason was over-ruled in Green v. Pigot, 1 Bro. Ch. Ca. 105. There have been many decrees for securing the fund; and the interest in the mean time has been given to the residuary legatee. Every decree says, that the Master shall compute interest from a year after the testator's death, unless any particular rate of interest or time of payment is pointed out by the will, and then according to the will. Acherly v. Vernon and the other cases depend upon particular circumstances. In Acherly v. Vernon Lord Macclesfield thought, that being given to trustees it was taken out of the bulk of the estate. This is simply a legacy by a stranger. The distinction between that and the case of parent and child constitutes the whole difference. The parent is bound to maintain the child: but if even a grandfather gives a legacy to a grandchild, and no particular time is mentioned, it shall carry interest from one year ter the testator's death, because it then becomes due: but if it is payable at a particular period, there is no delay of payment, and therefore there can be no interest. It is so laid down in Haughton v. Harrison, 2 Atk. 329. The case of a residue does not apply. In Roden v. Smith, Amb. 588, it is laid down, that if a legacy is given to an infant, to be paid at twenty-one, and if he dies under that age, then over, the legatee over shall have it immediately, if the first legatee dies under age: but if the legacy is not given over, and the first legatee dies under age, the administrator must wait till the infant would have attained twenty-one, because the residuary legatee is entitled to the interest in the mean time. The same thing was determined in Laundy v. Williams, 2 P. Wms. 478, and recognized in May v. Wood, 3 Bro. Ch. Ca. 474. In Descramps v. Tompkins, 4 Bro. Ch. Ca. 150 n. no interest was allowed.

[*12]

Reply. In Haughton v. Harrison the legacy was not * vested: there was a condition precedent; and what fell from Lord Hardwicke is only a dictum upon a point not then in question. In all the cases there is a labored effort to find out, whether it is a vested interest or not. Roden v. Smith proceeded upon this, that where a legacy is given, and a specific sum, not the interest of the legacy, is directed to be paid, the testator has marked distinctly, that he did not mean the whole interest to go. The expression cited from the decrees means, unless some prior time is mentioned in the will.

MASTER OF THE ROLLS [Sir RICHARD PEPPER ARDEN]. I thought this point had been decided; and I should never have thought of raising a difficulty, if I had found it upon the will, or if I had been Counsel. I should currente calamo have held, that the legacy could not have borne interest. I am sure the principle has been acted upon; for I know, I had the case of a grandchild before me; and

by struggling in favor of the grandchild I forced the executor to allow interest. The Court has departed from all principle in making the distinction. A grandchild is always in the same case as a child; but I cannot go so far as the case of an uncle. Another case is that of a natural child, for whom the Court will not supply a surrender (1): but if the father by will gives his natural child a portion payable at twenty-one, the Court will not say, it was intended to starve in the mean time, but will allow maintenance. If the Plaintiff is right, that question never could have arisen. I will look into the cases: but I entertain no doubt.

Dec. 9th. MASTER OF THE ROLLS. When this was first opened, I had much doubt whether I ought to permit it to be argued; having considered it to be as settled a point as any this Court has ever acted but when it was stated to be that sort of case, upon; which, though it might have been thrown out in judgment, yet never had been res judicata, I was willing to hear what could be urged, and principally with a view to decide as to the costs; for I certainly had no doubt, that upon looking into the cases it would appear, that though perhaps the very point had not been made the subject of decision, which might arise from its having never been questioned, cases have been determined over and over again, in which this case has been taken for granted; and they could have no doubt, if this had not been determined.

[* 13]

*I apprehend the testator had no children of his own, though it does not appear, nor what the fund is. No maintenance nor interest is given; and the single question is, whether a legacy to be paid at a particular time, which by the rule of the Court is held to be debitum in præsenti solvendum in futuro (2), and consequently a vested interest, is to carry interest from a year after the testator's death exactly as if it was not limited in point of time. What is stated as the language of every decree is decisive. As to the answer, that the expression "unless some other time of payment, &c." must mean some prior time, why has not the decree then got that? But the form never has been so, but universally as stated for the executor. Upon this plain principle, that interest is to be given

(1) Nor for a grand-child: Kettle v. Townsend, 1 Salk. 187; post, Perry v. Whitehead, vol. vi. 544; and in 546, Lord Eldon distinguishes the case of a grandchild, as not entitled to interest merely as a legatee; as a child is. The cases, Greenwell v. Greenwell, post, vol. v. 194; Collis v. Blackburn, ix. 470; and Fairman v. Green, x. 45; have been much disapproved by Lord Eldon; who would not follow them in any case admitting distinction; post, Lomax v. Lomax, Ex parte Kebble, vol. xi. 48, 604; Errat v. Barlow, xiv. 202, and the references in the note, 203; 2 Swanst. 436, and the note: as, where the whole interest is not confined absolutely to the legatees or the survivor; but there is a limitation over to the issue of any dying under twenty-one, or to a stranger. As to interest upon a legacy to a natural child, see 1 Sch. & Lef. 6, 7, the note. Post, vol. iv. 647; vi. 547; Lowndes v. Lowndes, xv. 301, against interest from the death of the testator; unless by implication appearing in loco parentis, intending a provision and maintenance: Hill v. Hill, 3 Ves. & Bea. 183. The relation of natural child not acknowledged by the law: Cartwright v. Vawdry, post, vol. v. 530, and the note, page 534.

(2) Post, Mackell v. Winter, 536; Bolger v. Mackell, vol. v. 509.