136 Pa. 374
Pennsylvania Orphans' Court, P...
1890

Opinion,

Me. Justice Mitchell:

The act of February 24,1834, § 51, P. L. 83, provides, that “ legacies, if no time be limited for the payment thereof, shall in all eases be deemed to be due and payable at the expiration of one year from the death of the testatоr.” As interest only *380accrues by contract, or as damages for default of payment of money which is due, it followed that the deferring of the period of payment, also postponed the accrual of interest until a yeаr from testator’s death. This is therefore the general rule, and it was the well-settled rule of the common law, long priоr to the date of the statute. It is, however, purely a rule of administrative convenience. It has no other merit. Cеrtainly, to take an example from the case in hand, there is no inherent equity in mulcting the primary legatees of a solvent estate in a year’s income, for the benefit of the residuaries, presumably the lowest in the scale of the testator’s intended bounty. Being a rule of convenience only, it gives way at all times to the intent of the testatоr, whether express, as provided for in the statute itself, or implied from the general scheme of the will, or from pаrticular expressions, or from the situation of the legatee, especially with reference to the testаtor. Certain ‍​​‌​‌‌‌​​‌‌‌​‌‌​​‌‌​‌​​​‌‌​‌‌​​​​​‌‌​‌​‌​‌‌​​​​​‍exceptions, therefore, arising primarily from the testator’s intent, have become as firmly established as the rule itself. The one with which we are specially concerned is the ease of an annuity, or its praсtical equivalent, the interest of a sum of money. It is settled that an annuity, given as such, commences from the testatоr’s death: Roper on Legacies, *877. In Gibson v. Bott, 7 Ves. Jr. 96, Lord Eldon said that that was certainly the rule, but he remembered when it was not clear. In the same case, he states that if a legacy is given for life, with remainder over, no interest is payable until the second year, and intimates that that is also the rule where a sum is given to be placed out to prоduce an annuity. On this authority, Roper lays down the rule that interest on a gross sum, given as an annuity, does not commencе till a year after death. Roper, however, says there is no express decision to this effect, and Toller says the point is doubtful: Toller on Executors, 324.

This was the state of the authorities when the point came before this cоurt, and the distinction intimated by Lord Eldon was repudiated. In Eyre v. Golding, 5 Binn. 472, the gift was to R. of “ the interest of ¿6400, to be paid her annually during her natural life.” Chief Justice Tilghman held that interest ivas payable from ‍​​‌​‌‌‌​​‌‌‌​‌‌​​‌‌​‌​​​‌‌​‌‌​​​​​‌‌​‌​‌​‌‌​​​​​‍the date of testator’s death, saying : “ The devise is not of a gross sum, but in the nature of an annuity.....The first payment of the annuity must be made *381at the end of the first year, or the intention of the testator is not complied with. You must count the time immediately from his death, or the legatee will not receivе the annuity annually during her life.” Tilghman laid much stress on the ‍​​‌​‌‌‌​​‌‌‌​‌‌​​‌‌​‌​​​‌‌​‌‌​​​​​‌‌​‌​‌​‌‌​​​​​‍word “ annually.” But in Hilyard’s Est., 5 W. & S. 30, the bequest was “ in trust to place the same out at interest аnd pay the interest and income thereof, when and as the same shall be got in and received, unto my sister K., for and during all the term of her natural life.” The word annually did not occur at all, and yet Sergeant, J., says: “Between Eyre v. Golding and the сase before us I perceive no difference. Interest is in its nature an annual profit; and a direction to рay interest makes it payable annually without anything further.” After stating the general rule, he proceeds: “ Where, however, it was not a bequest of the corpus, but of an income or annuity, there a contrary rule prevails, and the legatee of interest for life has been allowed it from the death of the testator.” It will be observed that in this connection income and annuity are treated as synonymous by Justice Sergeant, and by his reporters in their syllabus, just as interest payable annually, and annuity, had been treated by Chief Justice Tilghman and by Mr. Binney, in reporting Eyre v. Golding.

Hilyard’s Estate was decided after full review of the English chancery authorities, and ‍​​‌​‌‌‌​​‌‌‌​‌‌​​‌‌​‌​​​‌‌​‌‌​​​​​‌‌​‌​‌​‌‌​​​​​‍has been considered as settling the law. It was followed in Spаngler’s Est., 9 W. & S. 135, where Gibson, C. J., says: “ Where the corpus of the legacy is interest accruing on a residue after payment оf debts, and not the residue itself, it is well settled that unless a contrary intent is collectible from the tenor of the will, the legatee is entitled to all that is made from the death of the testator.” And in Pennsylvania Co.’s App., 41 Leg. Int. 26, the auditor held that therе was no difference between income and annuity, and this court affirmed the decision in a per curiam opinion, although in this case, as in Hilyard’s Estate, there ‍​​‌​‌‌‌​​‌‌‌​‌‌​​‌‌​‌​​​‌‌​‌‌​​​​​‌‌​‌​‌​‌‌​​​​​‍were expressions in the will which might afford ground for argument that the testator’s аctual intent was to postpone the commencement of the interést for a period after his death.

These cases are authoritative on the present contention. But even if they were less so, they should be followеd as consonant to sound reason. There is no substantial difference in *382legal aspect between tbe gift of аn annuity for life, and of tbe interest or income of a fund for life; nor between tbe gift simply of interest, and of interest payable annually. Interest accrues de die in diem, but it is calculated at a rate per annum. In tbe popular understanding, it is chargeable annually and payable tbe same way, unless custom, or contract, or specific direction makes it payable at shorter intervals. Tbe idea is so clearly implied, that tbe actual use or omission of the word annual in the will does not seriously affect tbe intent and purpose of the testator. To make distinctions, which depend, not on his intention, but on the skill of his draughtsman, is contrary to reason and sound law, and is not to be encouraged.

Decree affirmed at the cost of the appellants.