Bradford v. McConihay

15 W. Va. 732 | W. Va. | 1879

Green, PRESIDENT,-

delivered the opinion of the Court:

The first question presented by this record is : Did the will of Luke "Wilcox, as interpreted by the circuit court of Kanawha county by the decree of November 29, 1856, SylIabus 1. authorize the sale of this three hundred and twelve acre tract, or rather the saleof the coal and timber on this tract? This interest in this tract was unquestionably derived by the testator from the conveyance made to him by Madison Morris.” The decree assigning this interest to him says : “ It is to be held by him in severalty as for his own property which he claims by purchase from Madison Morris.” The impressions of the witness, Dryden Don-nally, are entitled to no consideration as against this clear and explicit declaration in the decree. The will says: “I further desire and hereby direct my excecutors that they shall sell the land and the appurtenances and improvements thereon, that was conveyed to me by Madison Morris by deed duly recorded in the clerk’s office of the county of Kanawha; and they shall also sell my interest (in the back lands below the left hand fork of Lens creek) in the estate of Leonard Morris, deceased, conveyed to me by James Hewitt by deed.” It would seem impossible to doubt about the disposition made by the testator of all his lands acquired by deed from Madison Morris; wherever situated he obviously directs it to be sold. The only doubt that could be raised on this clause of the will was, what portion of the lands that were conveyed to the testator by James Hewitt were to be sold. The testator says such of the Hewitt lands as lie below the left hand fork of Lens creek. The doubt arising is, did he mean below the mouth of the left hand fork of Lens creek, or did he mean on the lower side of the left hand fork of Lens creek ?

The 00ur* i11 construing this will by its decree uses language: “ And the court is further of opinion and d°th decide that the executor of the said Luke "Wilcox, deceased, is authorized and empowered by said last will and testament to sell the land, appurtenances and improvements conveyed to the said Luke Wilcox, deceased, by Madison Morris, and also the interest said Wilcox had in the estate of Leonard Morris, deceased, conveyed to him by James Hewitt, below Lens creek/’ There does not seem to me a possible question as to the meaning of this decree, so far as the lands conveyed to the testator by Madison Morris are concerned. The decree clearly declares that, all these lands, wherever situated, are to be sold by the executor. While a certain part only of lands, conveyed to the testator by Hewitt, is to be so sold, that is, such part of them as is below Lens creek. The court thus interpreted the orlly doubtful words in the will, the words: “ below the left hand fork of Lens cieek,” to mean on the lower side of the left hand fork of Lens creek, and not below the mouth of the left hand fork of Lens creek.

Nevertheless the appellant’s counsel insists that this decree ought not to be so interpreted; and that the words in the decree, “ below Lens creek,” apply as a description of the portion of the land conveyed by Madison Morris, which the executor was to sell, as well as to the lands conveyed by Hewitt. He urges, “that the punctuation and grammatical construction of this sentence in the decree construing this will shows clearly, that it was the intention of the court that the words ‘ below Lens creek’ should refer equally to the Madison Morris lands, as well as the Hewitt lands. In other words, Lens creek was made the dividing line between the land devised to his daughter and the land devised to be sold. If this was not the case, there would be no necessity for the comma after Hewitt; there would be no break in the sentence; so far as the Hewitt lands are concerned it would be continuous; but the sentence is broken up into parts or members by the comma, and for the express purpose of allowing the words ‘ below Lens creek’ to apply to the Madison Morris landsas well as to the Hewitt lands. The'sentence is to be construed distributively.”

The appellant’s counsel at length insists that this is the true meaning of this decree, and endeavors to show it from the pleadings in this suit, which have been given in the statement of the case. I think he fails to show that the pleadings would tend to such conclusion ; but I need not follow him in this argument; for the words of this decree, in my judgment, are so clear that it needs no enquiry to find out their meaning; and their plain and obvious meaning could not be controlled in this manner. The words, and also, separating the portions of the decree referring to the Madison Morris lands and the portions of the deeree referring to the Hewitt land, makes the .construction asked by appellant’s counsel impossible. With these words so inserted it is impossible to refer the the concluding words “below Lens creek” to any but the Hewitt lands. The will too is equally explicit on this point. It too separates the direction to sell the Madison Morris lands and the direction to sell the Hewitt lands by the words “ and they shall also sell.”

But even if this decree could be so interpreted as to make the words “below Lens creek” refer also to the Madison Morris land, still the interest in this three hundred and twelve acre tract would be thereby included as land to be sold; for this three hundred and twelve acre tract lies “below Lens creek” in the true meaning of the words “Lens creek” as used in this decree. The map and evidence show that it. lies between the two forks of Lens creek “below the left hand fork” and “above the right hand fork.” Now though the right hand fork is somewhat larger than the left hand fork, I presume, it being a mile or two longer, yet by this deeree the left hand fork is clearly what is considered Lens creek, and not the right hand fork, as the .clause in the will the court was construing says expressly, “below the left hand fork of Len’s creek.” The only doubtful word in ^ was fhe word “below;” and as the court construed the í£':iefow” to mean on the “lower side,” it could only mean by the words “below Lens creek” on the lower or northern side of Lens creek, regarding the left hand fork as the true Lens creek after it was divided by forking. It is therefore clear, that by the interpretation put on this will by the circuit court the interest of the testator in this three hundred and twelve acres of land was liable to be sold by the executor, as a part of the property conveyed to him' by Madison Morris; and as the l’esidue of the fund arising from the sale of lands by the executor was to be paid to the four children of the testator, it follows that the three children of Mrs. Amelia W. Bradford had no interest in this three hundred and twelve acres of land, or in any of the lands in controversy in this cause; and the court did not err in its decree so far as it dismissed the bill as to these three infant childi’en of Mrs. Bradford. But she being one of the children of the testator is entitled to an interest in the residue of the money arising from the sale of lands by the executor.

The next enquiry is : Did the administrator de bonis syllabus 2, non with the will annexed, Charles Hedrick, in point of fact sell the testator’s interest in this three hundred and twelve acre tract ? It is obvious, that the sale made by the executor, Nicholas Fitzhugh, in 1860 did not include the coal and timber on this three hundred and twelve acre tract. It is true, as we have seen, he was authorized to sell this interest by the will; and when he had appraisers appointed by the county court of Kanawha county, “ to appraise the land directed by the will of Luke Wilcox to be sold,” he ought to have had this interest in this three hundred and twelve acres appraised by them. It is certain however that he did not have it appraised, for we have the report of the appraisers which was approved by the court and ordered to be recorded; and they are very clear and explicit. They valued only the fifty and one-fourth acres, as it is called, lying on the river, which was the tract conveyed to the testator by Madison Morris by metes and bounds, and the undivided interest in the tract oí five hundred and sixteen and half acres immediately in rear of it and adjoining it, this interest being said in the report to be forty and three-fourths acres, an undivided thirteenth part of this five hundred.and sixteen and one-half acre tract. Why the executor did not have this interest in the three hundred and twelve acre tract valued, we do not know. The probable reason is, that he did not intend at that time to sell it. And for the same reason he did not have the Hewitt lands below Lens creek appraised, or it may be they were forgotten by him. This appraisement was made only four days before the public sale made by the executor, and was no doubt an appraisement of the lands he intended to sell and did actually sell. It seems to me clear that he did not, when he advertised this property, contemplate selling the interest in this three hundred and twelve acres, though he did then contemplate selling the interest in the Hewitt back lands below Lens creek, but before the sale he abandoned the idea of selling any of these Hewitt lands, and therefore probably did not have them appraised. His advertisement cannot fairly be construed to include this interest in this three hundred and twelve acre tract.

The language of the advertisement was “The undersigned will sell at public auction on Monday the 16th of November, 1857, on the premises, the salt property lately owned and occupied by Luke Wilcox, deceased, in Kanawha county, Virginia, below Lens creek, being the same property which was formerly conveyed by Madison Morris to said Wilcox.” Now it is true that this conveyance of Madison Morris to Luke Wilcox did convey this interest in this three hundred and twelve acres, but it had been assigned to him but a short time before his death, and had never been, 'so far as the record shows, occupied by him. It lies between the forks of Lens creek, and is some four miles distant from the other property, the premises on which the land was to be sold, an<l it never had been used in connection with it. It could not be considered a part of the salt property occupied by Luke "Wilcox, and no purchaser from this advertisement could have supposed it was to be^ sold. The purchaser at the sale testifies, that he had no idea he was bidding for or bought any interest in this three hundred and twelve aeres, four miles distant. And the executor testifies, that “the property sold by him was the Brownstown property.” The two parcels of land which the appraisers only four days before the sale had appraised lie in the immediate neighborhood of Browns-town and adjoin each other, and they and only they are the “Brownstown property” sold by the executor.

Did the sale made by C. Hedrick, administrator de bonis non of Luke Wilcox, on October 3, 1865, include this interest in this three hundred and twelve acres, or was it to be confined to this Brownstown property, which had been previously sold by the executor, but which sale had never been perfected ? He says in his answer that he was appointed administrator de bonis non with the will annexed of Luke Wilcox in 1863, “and this appointment was for the purpose chiefly, if not altogether, of getting a sale of the land, directed by the will to be sold to pay said legacy; that the estate of said Luke Wilcox, deceased, was then well nigh wound up arid administered with the exception of the completion of the sale of the real estate.” He probably therefore knew but little about the estate. He was one of the appraisers in 1857 of “the lands directed to be sold by the will of Luke Wilcox, deceased.” The administrator had shown him but the two parcels of land near Brownstown adjoining each other, and known as the salt property, as the land to be sold, and he as one of the appraisers did then appraise this Brownstown property, and the report which he signed purports to be an appraisement of the lands directed to be sold by the will of Luke Wilcox. It is therefore highly probable, that when he sold on October 3, 1865, he did not even know that he was authorized to sell an interest in three hundred and twelve acres of land lying in the forks of Lens creek, some four miles distant from the lands which had been shown him as the land to be sold, and which he had appraised. It seems to me this administrator in preparing his advertisement of the lands to be sold by him would naturally go to his report, which was on record, to describe the lands, and when we read his advertisement we cannot resist the conclusion that it was prepared from this report, or at least that he intended to advertise for sale the exact property that he had previously appraised, and which his predecessor had sold but had failed to complete the sale. The advertisement describes the property thus: “That valuable salt and coal property below Lens creek and near Brownstown, di'rected by said Wilcox’s will to be sold. There are about forty acres of good Kanawha bottom, and sufficient coal to operate a furnace, a storehouse and other buildings.” This description even more obviously than the advertisement of the executor would not include the coal and timber on a tract of land of three hundred and twelve acres between the forks of Lens creek, and distant four miles from Brownstown. This tract had never been used in connection with these salt works, and was so distant that probably it could not be, to any advantage. Why this piece of land any more than any of the Hewitt back lands, which he was authorized to sell, should be supposed to be included in this advertisement, I cannot see ; for it does not speak, as the advertisement of the executor had, of the land offered for sale being the Madison Morris land. Doubtless some of the Hewitt lands were much nearer to this salt property than this three hundred and. twelve acre tract; and they belonged to the testator and were authorized to be sold. If then we are permitted to interpret this advertisement as including this three hundred and twelve acre tract, surely it ought to be'interpreted as including some of the Hewitt land lying much nearer Browstown and below Lens creek.

There is no evidence of what passed at the time of the sa^e> and i-11 absence we must assume that the land was s°ld which was advertised. It is true the administrator in his answer says : “he intended to sell all the lands and appurtenances with the improvements thereon conveyed by Madison Morris and wife to said Wilcox.” Doubtless this is true ; but he does not pretend to say that he advertised, or announced at the time of the sale, that this was the laud to be sold. He advertised only the “salt and coal property near.Brownstown, on which was a storehouse and other buildings, sufficient coal to operate a furnace, and forty acres of good Kanawha bottom.” He no doubt thought that this was all the “land and appurtenances and improvements conveyed by Madison Morris to Luke Wilcox but his so thinking cannot make his sale extend to land so conveyed which was four miles distant, and in no manner appurtenant to this salt property. So too, the answer of the purchaser says in general terms : “'That the interest in this three hundred and twelve acres was sold at the time and is a part of the purchase ;” but neither of these answers are sworn to, and the deposition of the administrator was never taken, and the purchaser in his deposition does not pretend in any way to define what was sold on the day of the sale. The bill specifically alleged : “ That at, the time of the sale made by Charles Hedrick, administrator, no mention was made of the said tract of three hundred and twelve acres,” and this not being denied by either answer it must be regarded as true. Its truth is further shown by the proof that the purchaser was at first dissatisfied with his purchase, but was satisfied when he was informed by a lawyer two or three months afterwards that he had an interest, which he did not know of, or where it was, till so informed, and this was on Lens creek. The deed executed on the day of sale “ conveys the land, appurtenances and.improvements thereon that was conveyed to Luke Wilcox by deed duly recorded in the recorder’s office of Kanawha county, which deed bears date the 13th day of July, 1839, to which reference may be had for a more particular description.” As the property conveyed is not specified in this deed of July 13, 1859, except a part of the salt property near Brownstown, which is set out by metes and bounds, the parties doubtless thought that this description of the property included only the property actually sold that day, that is, this piece of land the boundaries of which are given, and an interest in an adjoining tract of land. But we have seen that in addition to these, it conveys an interest in a tract of land of three hundred and twelve acres about four miles distant from the others. This mistake in this conveyance ought to have been corrected by the circuit court in this suit. syllabus 3

The next enquiry is: Ought the court below to have set aside this sale for the gross inadequacy of price ? The .property sold for $4,710.00. The witnesses estimate this property to be worth then about twice that amount; but less confidence is to be placed in these estimates, because of the peculiar difficulties of estimating the then value of this property. One witness estimates it to be worth seven times as much as another, but these two estimates must be regarded as made by parties wanting in sound judgment, or under undue bias; but even among the witnesses, who were apparently unprejudiced and equally competent, there is a very great difference in their estimates, arising out of the intrinsic difficulty of valuing the property. This alone apparently caused some estimates to be double that of others. Under these circumstances we cannot attach as much importance to these estimates, as we would ordinarily attach to the estimates of witnesses. As tending to show that the average estimates of the witnesses of good judgment were too high? we must remember that the former executor tried for several years to sell this property and exerted himself in good faith to get the highest price therefor, and never had more than $4,600.00 offered for it, and that the party who made this offer at a public sale did not, as his con-^ucf; shows, think he had bought the property at less than it was fairly worth, and was not very anxious to get at that price, though the property was then worth as much, or nearly as much, as it was at the time of the second sale, and also that the purchaser at the second sale at the time was not anxious to keep the property at the price he had given, $4,710.00, but was willing to give it up, if he could do so without loss; and that there is no allegation or proof that at either of these sales there was any fraud or unfairness on the part of either the seller or buyer, but on the contrary that they were both perfectly fair sales. We must also in considering'this question bear in mind that there are no infants interested in this sale; and that the party now seeking to set it aside has but a small interest in it, and that she did not institute this suit for nearly five years after the sale, and that in the meantime the purchaser has spent nearly or quite as much money in improving the property as he gave for it originally; and that these heavy expenditures were made without any protest by the parties interested in this sale, who could just as readily have instituted this suit promptly as after this lapse of time, and no excuse is offered for this delay.

There is no evidence or circumstance in this case from which it could be inferred, that in accepting the prices which they did for this property either the executor or afterwards the administrator were guilty of any bad faith or breach of the trust conferred on them, or that they did not act in good faith and according to their best judgment as to the interest of those to whom the proceeds of such sale were to be paid. The testator had been dead, when the last sale was made, more than eleven years. The legatee who was to be paid first out of the sale of this land had been paid no part of his legaey, and though a large discretion had been given the executor by the will as to the time of the sale and to the terms of ci’edit on which this land might be sold extending, if the executors thought proper, to five years, it was still the duty of the administrator with the will annexed to sell this land, even though he could not get’ for it the appraised value, $8,500.00. Nor can I see that he acted in faith in selling for one-third cash and the balance in two equal instalments, at twelve and eighteen months, with interest from the day of sale. .He may well have thought that after the lapse of eleven years it would be unjust to the legatee to sell this land on a credit of five years, and had it been so sold, there is no sort of assurance that it would have brought a larger price, as the legatee was himself the purchaser. But even if he did err in judgment in fixing the terms of sale, it was a matter about which he had a right by the will to exercise his judgment, and there is no ground for supposing that in so doing he acted in bad faith. Several years had been spent by the executor in endeavoring to sell this land ; $4,600.00 -was the highest offer he had ever received, and the administrator cannot, be charged with a delinquency of duty in accepting a bid of $4,710.00.

The courts generally regard, as the the value of a thing, the price it will bring. Value admits of no precise standard. This rule is especially applicable to publie sales. When there are no ingredients in a case of suspicious character, and no peculiar relation of parties, mere inadequacy of price will not be considered by a court as any reason for setting aside a sale, unless where the inadequacy of price is so gross as of itself to prove fraud.

But the case would have to be very sti’ong to justify the court in holding a purchaser at a public auction, between whom and the vendor there had been no previous communication affecting the fairness of the sale, as chargeable with fraud, merely because the property has been knocked down to him at a small price. To set aside a sale for inadequacy of price under such circumstances the inequality must be so gross, that the mere stating of it must shock the conscience of a man of common sense and afford evidence of fraud. Gwynne v. Heaton, 1 Bro. C. C. 1; Osgood v. Franklin, 2 Johns. Ch. 23. And 00iu'ts have frequently refused to set aside sales and other contracts, where there was a great inadequacy of an<* w^cre circumstances surrounding the case were to some extent suspicious. See Criffith v. Spratty, 1 Cox 383; Coppis v. Middleton, 2 Madd. 409; Naylor v. Winch, 1 Sim. & St. 565; Borrell v. Dana, 2 Hare 460.

There being in the circumstances surrounding this case nothing to excite a suspicion of fraud or bad faith on the part of the administrator who made the sale, the inadequacy of the price is not such as to justify a conclusion that he, or the purchaser, acted in bad faith or fraudulently. And without this all the authorities hold that mere inadequacy of price will not be a ground for setting aside a sale or contract. In this case the only ground claimed for assailing this sale is the inadequacy of the*price.

It only remains to consider, whether the legacy of Syllabus 4. $3,000.00 to John G. Bruce should bear interest from one year after the testator’s death. This legacy is left him to be paid out of the fund arising from the sale of the real estate which the executors were to make. This sale was not made for more than eleven years after the testator’s death ; and the appellants claim that it did not bear interest till after this sale was made. The language of the will is: “I give and bequeath to my friend, the Rev. John G. Bruce, and to his heirs forever $3,000.00 to be paid out of the fund arising from the sale of the real estate hereinbefore directed to be sold.” And in the clause directing the sale the will says: “In making the sale of the real estate hereby directed, it is my wish and desire that my said executors shall act as they shall deem most to the advantage and interest of those concerned as to the proper time when said property shall be sold; and they are hereby authorized to sell the same on a credit of one, two, three, four and five years with interest, if by such credit, in their opinion, the interest of those concerned would thereby be best promoted. I desire that when the legacies and bequests, as hereinafter provided to be paid out of this fund, shall have been paid and satisfied, I give and bequeath the rest and residue of fund arising from the sale of said real estate to my four children, equally to be divided among them.”

It is unquestionably true, that as a general rule a legacy payable at a future day does not bear interest except from the time it is payable; and the exceptions to this rule are cases which bear no resemblance to the case under our consideration. Most of the authorities referred to by the appellant sustain this position, and really decide nothing more than this, which has any bearing on the question under discussion. See Ballantyne v. Turner, 6 Jones Eq. 225; Lupton v. Lupton, 2 Johns. Ch. 228; Van Bramer v. The Ex’r of Hoffman, 2 Johns. Cases 200; Kerr v. Bosler, 62 Pa. St. (12 P. F. Smith) 183; Page’s Appeal, 71 Pa. St. (21 P. F. Smith) 402; Dewert’s Appeal, 70 Pa. St. (20 P. F. Smith) 403; Dawes v. Swan et al., 4 Mass. 208; Smith v. Moore, 25 Vt. 127; Magoffin’s adm’r v. Patton et al., 4 Serg. & R. 119; Heorle v. Greenbank, 3 Atk. 716; Stephenson v. Axon & Mitchell, 1 Bailey 278. I have examined all these cases, because relied on in argument by appellant’s counsel; but they only decide a proposition which is elementary, that as a general rule a legacy will not bear interest till it is payable. Many of them contain discussions as to what are the exceptions to this general rule; but it is obvious that these exceptions have no existence in circumstances such as are presented in this case; and the only question is: Was the legacy in this case by this will really payable at a future day ? If it was, it can not bear interest except from that time. On the other hand, if it was not payable at a future time, then it will bear interest from twelve months after the testator’s death. That proposition is as unquestionable as the other, and is admitted in many of the esses above referred to. If a testator simply bequeath a legacy to be paid to a legatee, and is silent as to when it is to be paid, all the authorities agree that such a legacy will bear interest Iro m a year after the testator’s death ; for it is not made payable at a future time. Such a legacy is payable out of the personal estate generally, after the debts have been paid, and though it may take Vears to settle up the estate, dispose of the personal property, ascertain and pay the debts, and though the legatee may thus have no right to demand his legacy for years, yet when it is paid, it must be paid with interest from one year after the testator’s death, unless by the will it was made payable at a future time. See Sitwell v. Bernard, 6 Ves. 520; Entwistle v. Markland, note to 6 Ves. 528; Pearson v. Pearson. 1 Sch. & Lef., wherein is cited the case of Greening v. Baker, where interest was allowed on a legacy from one year from the testator’s death, though the fund did not come to be disposable for nearly forty years after the testator’s death, and the legacy could not till then be paid.

Nor will the right of the legatee to demand this interest be changed by the fact that a particular fund, as the proceeds of the sale of land or of particular personal property, being directed by the will to be applied to the payment of the legacy, as is shown by the last cited case and others. The legacy is then called a demonstrative legacy ; and the legatee has a right to have the particular fund applied to the payment of his legacy, though their be no estate applicable to the payment of other legacies. While, if the fund should for any reason prove unavailing, he is still on the footing of other legatees, and may claim his legacy out of the general personal estate in common with other legatees who are general. See Gallaher v. Gallaher, 6 Watts 473; Cogdell v. Widow, 3 Desau. 372; Wilcox v. Rhodes, 2 Russ. 452 (8 Cond. E. Chy. 194); Coleman v. Coleman, 2 Ves. Jr.; Roberts v. Pocock, 4 Ves. 150; Fowler v. Willoughby, 2 Sim. & St. 354, (1 Cond. E. Ch. 473); Ashburn v. Maguir, and Cartwright v. Cartwrignt, 2 Bro. C. C. 114. When the legacy is demonstative, that is, when the legacy is given with a demonstration of the particular fund as the source or means of payment, it will not fail, even when the source out of which it is to be paid never had an existence. See Gallaher v. Gallaher, 6 Watts 473. It lows from these characteristics of a demonstrative legacy, that if it be not payable at a future time, like a general legacy it will bear interest from one year after the testator’s death ; for the demonstration, or pointing out, of a particular fund out of which it is to be paid still leaves it on the footing of a general legacy, with the advantage over such general legacy of haying that particular fund especially devoted to its payment to the exclusion of general legacies, if necessary.

The real difficulty is, to determine in some cases whether a legaey is a demonstrative legacy, that is agen-eral legacy with a demonstration of the fund out of which for convenience it is to be paid, or a specific legacy. When the gift is so connected with the debt or security out of which it is to be paid that the gift of the legacy and of the debt or security are really the same, and when the intention is to give nothing more than the identical debt, or money due on the security, the legacy is not demonstrative, but is specific. In such cases of course the legatee cannot claim his legacies till the debt or security is realized. The courts however incline against construing a legacy as not demonstrative. One of the cases cited by appellant’s counsel was of this description. In Finche et al v. Finche et al, 53 N. Y. 528, where a testator devised his real estate on trust to be sold and the proceeds divided among his grandchildren, and by a codicil he provided in case the proceeds do not amount to $30,000.00, there should be added to the proceeds out of his estate sufficient to make up that sum. This was regarded as a specific bequest to the extent of the value of the land, and a general bequest of enough to make up the $30,000.00; but this general legacy was not to be paid till the deficiencj- was known by a sale of the land; and being only payable then, the legatees were entitled to receive the income of the land till the sale, and not to recover interest on the whole $30,000.00 from the death of the testator. But most of the cases cited by him, where interest on legacies was not allowed till the fund out of which the legacies were to be paid tvas realized, were decided on the ground that from the wording of the will the legacies themselves were not payable till that time.

Thus in Lord v. Lord, 2 Ch. App. Cas. 782, a testatrix having a general power of appointment over property, which was the subject of a pending litigation, gave it by her will to J. L. upon trust: “So soon as the proceedings in law and equity should be terminated, and the same should come into his possession, that, then he should assign certain stock ; secondly, to pay to each of her brothers and sisters £2,000.” It was decided that the trust to pay the legacies did not arise, and consequently the legacies did not carry interest till the litigation ended and the property came into the hands of the trustee, which was more than eighteen years after the testator died. The counsel in that case on the one side contended, that by the construction of this will the legacies were payable immediately, though out of a fund not capable of realization immediately. They contended that it was a case where the payment was postponed only for the convenience of the estate. On the other side it was contended, that this was a gift out of a fund when realized. A gift in future, not a present legacy; and as interest on a legacy payable in future only runs from the time‘it was payable, that interest could not be demanded till the fund was realized. And this last view was approved by the court, who approved the case of Wood v. Penoyre, 13 Ves. 325; but the court thought this case was distinguishable from it.

In that case the testator “gave £2,500 to be paid out of the money due on the Irish mortgage, when the same shall be recovered.” The court decided that the legacy bore interest from a year after the testator’s death. Sir William Grant, the master of the rolls, says: “My first impression of this case was that the words 'when the same shall be recovered5 had the effect of postponing the time of payment, and consequently the right of interest until the mortgage debt, out of which the legatee was to be paid, should have been actually recovered and got in. But upon further consideration of the case, I am satisfied these words mean, and therefore ought to receive, a different construction.

“Whenever legacies are given out of outstanding securities, those legacies cannot be . actually paid until the money due on such securities is actually got in; but by a rule which lias been adopted for the sake of general convenience, this Court holds the personal estate to be reduced into possession within a year after the death of the testator. Upon that ground interest is payable upon legacies from that time, unless some other period is fixed by the will. Actual payment may in many instances be impracticable within that time; yet in legal contempla-' lion the right to payment exists, and carries with it the right to interest until actual payment. In the case of Entwistle v. Markland, and Sitwell v. Bernard, 6 Ves. 520, it was determined that the reference by the testator to the time at which his personal estate should be got in, does not without the most plain and distinct indication of his intention, affect the legal presumption that the personal estate may be got in within a year from the testator’s death.” And again : “I cannot without neglecting the authority of these cases hold, that the mortgage, though not actually capable of being called in, is not to be understood as having been got in within the year. Constructive receipt is held equivalent to actual receipt for the purpose of the right to interest. See Hambling v. Lyster, 1 Amb. 401.”

The eases of Laporte v. Bishop, 11 Harris (23 Pa. St.) 152; Roberts et al v. Malin et al, 5 Ind. 18; Page &c. v. Miller’s devisee, 2 Duval 168 were cases in which there were contests about when legacies were payable and therefore from what time they bore interest; but neither they nor an7 °fthe cases cited by the appellants’ counsel, other than those 1 have commented on, really throw any light on the question we are considering.

Upon the authorities I have cited it seems to me clear that this legacy of $3,000.00 to John G. Bruce bears interest from one year after the testator’s death. On the face of the will it is a present gift to him : “I bequeath to John G. Bruce $3,000.00 to be paid out of the land sales.” It does not even say, to be paid when the proceeds of the sale of lands are realized; .and if it had, it would perhaps under the authorities not have prevented the interest from running under the provisions of this will. As the will is worded it seems to me there can be no doubt. The fact that the testator for the convenience of his children, who were to get the balance of this land fund, authorized his executors to sell the land at whatever time they deemed best, and authorized them, if they chose, to give long credits upon it, it seems to me, on the authorities I have quoted, to have no weight in preventing the legacy from carrying interest from one year .after the testator’s death, as legacies generally do; for these provisions certainly did not necessarily prevent the executor from selling the lands, and realizing the funds, within the year. There-was no legal impossibility in its being done; and for the purposes of charging interest on the legacy the law assumes it to be done. In many cases the testator from the situation of his estate'must know, that legacies cannot possibly be paid in a year from his death. Yet they are all legally due then and will bear interest from that time, unless the testator has expressly, or by clear indications, in his will shown that they were not to be paid until some later period.

Throughout the progress of this case it is assumed that the defendant, John McConihay, is the assignee of this legacy of $3,000.00 to John G. Bruce. But there is no proof that it ever was assigned to him, and does not still belong to Bruce. He, or his personal representative, must be made a party to this suit; and if it should turn ■out that the legacy still belongs to Bruce, McConihay must be made to pay the purchase-money of the lands actually bought by him, before a deed is made to him for them.

I conclude therefore that the decree of the circuit •court ot November 16, 1875, must be reversed and annulled; the appellant, Amelia W. Bradford, must remover of the appellee, John McConihay, her costs about her appeal in this Court expended ; and the cause must be remanded to the circuit court to be further proceeded with according to the principles laid down in this opinion and further according to the rules governing courts of equity; and that in so proceeding the bill should be dismissed as to the infant children of Amelia W. Bradford, they having no interest in the subject of controversy, but "that it should be sustained as to the plaintiff, Amelia W. Bradford, as she has rights which should be protected and enforced in this suit, she being entitled to one-fourth of the surplus of the sale of lands made and to be made under the will of her father, Luke Wilcox, after the payment of the legacy to John G. Bruce ; and she should be permitted and required under the penalty of a dismissal of her bill to amend the same in a reasonable time, but without prejudice to any other party to this suit or interested in the estate of Luke Wilcox, and ‘make John G. Bruce or his personal representative, if he be dead, a party to this suit. It should set aside and avoid the deed made October 3, 1865, by C. Hedrick, administrator de bonis non with the will annexed of Luke Wilcox, to the •defendant, John McConihay, as made so as to include by mistake of the parties more property than ought to have •been conveyed to him; and upon his payment of the (purchase-money due from him, if it has not already been paid, by its being proven that he is the assignee of the legacy to John G. Bruce, the court should have a deed •executed to him conveying the land actually purchased •by him, that is, the land included in the appraisement made by C. Hedrick, John D. Lewis and A. P. Sennett, sworn to by them November 12, 1857, and none other, which sale the court should uphold as fair and binding on the parties ; and the court under its supervision should have sold the residue of the real estate, directed by the will of Luke Wilcox to be sold, that is to say, the coal and timber on the three hundred and twelve acres of land in the bill named, and any other real estate conveyed by Madison Morris to Luke Wilcox, wherever situated, which has not already been sold, and any real estate belonging to the estate of Leonard Morris, deceased, which -was conveyed to Luke Wilcox by James Hewitt, and which lies on the lower or northern side of Lens creek or the left hand fork thereof; and out of the proceeds of such sales, and of the sale already made, the court should have paid the whole, or such remainder of the legacy bequeathed to John G. Bruce as has not already been paid, with interest thereon from one year after the death of the testator, and distribute the residue equally among the four children of Luke Wilcox, or their assignees, or the persons entitled to their shares respectively ; and take such other steps as equity and justice may require.

The Other Judges Concurred.

Decree Reversed. Cause Remanded.