The questions in controversy, raised by the pleadings in this case are, by an agreement filed on the 16th inst., reduced to two, and those are, first, as to the validity ox the claim preferred in the bill, for interest on the sum of §20,000, from the 25th of April, 1889, the day of the death of Mrs. Ann Donnell, to the 9th of June, 1842, when the said amount of $20,000 in property was set aside for the complainant, Mary; secondly, as to the right of the defendant, Donnell, on the settlement of accounts with the defendant Howard, as shown by an Exhibit filed with the answer of the latter, to be credited for interest as therein charged, amounting to $861 38 on the money advanced by said Donnell, to pay one-half of the commissions and expenses for dividing the estate of E. J. Williams, and setting apart the $20,000 in property, as aforesaid, for the complainant Mary. By a supplemental agreement, the question first submitted was so far modified, as to leave the complainant’s counsel at liberty to claim a proportion of the rents and profits of the estate of Mrs. Ann Donnell, received by the defendant Donnell, from the time of her death to the 9th of June, 1849, if the Court shall bo of opinion that any of the averments of the bill raise such a claim. And it was further agreed that the complainant, Mary, notified the trustee Howard, in January, 1841, and afterwards, of her claim for interest on the $20,000.
Whether the complainants are entitled to interest on the sum of $20,000, or to a proportion of rents and profits, in lieu of interest, assuming the case made by the bill would justify a decree of the latter description, in the face of an exception denying such right, depends upon the true construction and legal effect of certain marriage articles entered into by Mrs. Ann Williams, the mother of the complainant Mary, and the defendant Donnell, on the 16th of September, 1849, just prior to their marriage. By these articles, Mrs. Williams
It further appears from the proceedings, that Edward Gf. Williams, the father of the complainant Mary, and the first husband of Mrs. Ann Donnell, being seised and possessed of a large estate, real and personal, made his will, by which, with some inconsiderable exceptions, he devised and bequeathed the whole thereof to be equally divided between his said wife and daughter, whenever the latter should reach the age of eighteen years, or marry, with the consent of her mother, and until either of such events should happen, he directed that his said wife
And it has been admitted by the parties to this suit, that from the death of Mrs. Donnell (formerly Mrs. Williams), on the 25th of April, 1839, to the 17th of March, 1840, when the complainant Mary attained the age of eighteen, the defendant Donnell received the income of the entire property left by said Edward Gr. Williams to his wife Ann, and his said daughter, and also of the property which the said Ann had acquired otherwise, said income amounting annually to about §4,500; and that said Donnell applied the same to his own use, except that therefrom during said period, he supported and educated the said Mary at an expense of about §1,500 per annum.
It was also admitted that from the said 17th of March, 1840, until the 9th of June, 1842, when the sum of §20,000 was set apart for the said Mary, said Donnell received and applied to his own use, the income arising on the moiety, or those which the said Ann acquired under the will of her first husband, Williams, and on the other property of said Ann, amounting annually to about $2,000. That the moiety or share which said Ann acquired under the will of her first husband, was of the value of about $55,000, of which about $22,500 was unproductive, and that the residue of the property of said Ann was of the value of about §18,000. The complainant Mary, having attained the age of eighteen on the 17th of March, 1840, intermarried with the other complainant, John Campbell White, in July following; and it appears by various Exhibits filed in the cause, that the trust originally conferred upon the defendant Howard, has been transferred to said John Campbell White, by deed dated the 23d of August, 1848.
It further appears, that on the 5th of July, 1841, the original trustee, Howard, Mary S. White, John Campbell White, and the defendant Donnell, in pursuance of the before-mentioned marriage articles, selected three persons, to set apart, from and out of the trust estate of the said Ann Donnell, deceased,
This allotment, thus made by the persons so selected, was affirmed and ratified by the complainants and defendant, Donnell, as appears by a writing to that effect signed by them, which, though not dated, is admitted to have been signed on the same day. And by a declaration, dated the 14th of July, 1843, under the hand and seal of Howard, the trustee, he ratified and affirmed said allotment, and declared that he held said property for the use of the complainant Mary, according to the provisions of the said marriage settlement of her mother, Mrs. Donnell.
The hill in this case was filed on the 8th of June, 1849, and of the subjects of claim presented by it, all are, by the agreement before-mentioned, abandoned, except the claim for interest on the $20,000, or a proportion of rents and profits from the 25th of April, 1839, the day of the death of Mrs. Donnell, to the 9th of June, 1842, when the property was set apart, and from which period the complainants have boon in the enjoyment of it, and, consequently, the first and most material question is whether, under the circumstances of this case, the claim, in either aspect of it, can be supported ?
It may, I think, be very fairly inferred, that at the time this portion of the trust property of Mrs. Donnell was set apart and segregated from the rest of the estate, it was the impression of the defendants, Donnell and Howard, that the entire claim of the complainant in reference to this property was
But waiving any objection to this claim now set up, founded upon lapse of time or acquiescence, or upon any of the circumstances which have transpired since the death of Mrs. Donnell, I purpose very briefly to consider whether, upon the terms of the marriage settlement in this case, and in accordance with the principles which govern the Courts, in deciding the question of interest upon legacies or gifts in their nature testamentary, the complainants are entitled to interest, or a proportion of rents and profits, upon the sum of $20,000, as claimed in their bill.
Most of the rules upon this subject are stated by Mr. Justice Story, with his accustomed perspicuity and force, in the case of Sullivan and Wife vs. Winthrop et al., 1 Summer, 1. It was there said, that in the case of a pecuniary legacy, where no time of payment was fixed by the will, and no interest provided for by its terms, the rule was irrevocably established, that the legacy itself was not payable until the expiration of one year from the testator’s death, and that interest upon it did not commence earlier. And although the marriage articles in that case provided, that in the event that the intended husband of the testatrix should survive her, her trustees should, forthwith upon her decease, convey and transfer her property to such person or persons as she should appoint, or to whom
But though the general rule in regard to the time when a pecuniary legacy shall commence to carry interest, when no time of payment is provided for by the terms of the will, is thus inflexibly established, there are exceptions to the rule as firmly settled as the rule itself, and one of these exceptions is, when the legacy is given by a parent to a child, or where the testator stands to the legatee in loco parentis, and the latter is otherwise unprovided for, for then, whether a future time is fixed for the payment or not, interest will be allowed from the death of the testator, upon his presumed intention to perform his moral obligation to maintain his child, or the person towards whom he has placed himself in the relation of parent. But if other funds are provided for the support of the legatee, then whatever may be the relation in which the testator stands to the former, the general rule applies. The exceptions are stated and proved in the case of Sullivan vs. Winthrop et al., before referred to by numerous authorities, and neither can nor have they been questioned.
In this case it is undeniable that another and ampler fund was provided for the maintenance of the complainant, Mary, by the provisions of her father’s will, and it is admitted that the iniunetions of this will have been by the defendant, Donnell,
The case then stands clear of any influence which the relation existing between Mrs. Donnell and the complainant, Mary, would otherwise exert upon it if the latter had been destitute of the means of support, and is to be decided without reference to that relation or the moral duties it imposes.
The argument of the complainant’s counsel is that, by the express terms of the marriage articles, upon the contingency which actually occurred, the sum or value of $20,000 was to be set apart, immediately upon Mrs. Donnell’s death, for the use of the complainant, Mary, and the time being thus definitely fixed by the will, interest is to be paid from that period. This brings us to inquire, whether the time when this value of $20,000 is so to be set apart, is so absolutely fixed by the terms of the marriage articles as to entitle the complainant, Mary, to interest upon it from the death of her mother, though the general rule of the law would not so entitle her until a later period? We have seen that the words “ forthwith upon the decease” of the testatrix, and that the legacy shall be paid “ as soon as possible,” have not been regarded of sufficient force to supersede the general rules of legal interpretation, and yet I think it must be admitted that this language is quite as strong as the terms employed in these articles.
There is, moreover, another ground, apparent upon the face of the instrument, from which the inference is strong, if not irresistible, that the mother did not and could not have intended that in case she died in the minority of her daughter, that this portion of her estate should be immediately set apart for her use. It will be observed that the property so directed to be set apart was “ to be ascertained and decided in writing, and upon oath by three persons, or a majority of them, to be appointed by the said trustee, the said Mary, or those who may claim under her, and the said John S. Donnell respectively.” The complainant, Mary, who was an infant at the date of the marriage articles, and at the period of her mother’s death, was to appoint one of the persons who were to ascertain
There was nothing in the circumstances or prospects of the complainant Mary, which could have induced her mother to direct that she should have the immediate use of .this property. She was by the terms of her father’s will, entitled to a full moiety of his estate upon attaining the age of eighteen years, and in the mean time ample provision was made for her maintenance and education. In this state of things, it is not reasonable to suppose that her mother was so peculiarly solicitous to secure to her the immediate enjoyment of this fund, as to force upon her a legal capacity to act before the general rule of law she could possess that capacity.
In view, therefore, of all the circumstances of this case, and giving due weight to the acts of the parties since the death of Mrs. Donnell, I am of opinion, that the claim for interest, or rents and profits in lieu of interest, set up by this bill cannot be maintained, and therefore decide the first question against the complainant.
With regard to the second question, my opinion is, that the defendant Donnell is not entitled to be credited for interest as charged in the account, exhibited with the answer of the defendant Howard, on the money advanced to pay expenses incurred in dividing the estate of Edward G-. Williams, and setting apart the $20,000, for the complainant Mary. It appears to me, that one-half of these expenses was fairly chargeable to Mr. Donnell, under the circumstances stated in the answer of the trustee Howard: and I do not see upon what principle ho can be credited with interest upon moneys thus paid.
As the defendant Howard is not interested in the questions which have been argued, I have thought I would not longer withhold my opinion upon them, reserving for further consideration and discussion the claim for commission set up in his answer.