4 Ga. 528 | Ga. | 1848
By the Court.
delivering the opinion.
Now, it will not be controverted, that the intention of the testator, in relation to the hire of the slave, if it can be ascertained from the will, and from the allegations in the bill, which, the demurrer confesses, must prevail. Although the intention is not perfectly manifest; yet, we think, that it may be fairly inferred, that he intended to give the hire to the specific legatee. The property in Mat, we think, vested absolutely in him — there is no restriction or limitation upon the property — the only limitation is upon the possession. That alone, is postponed until he arrives at twenty-one. From the absoluteness of the gift, and from the fact that by the words of the will, the possession only is postponed; we infer that, with Mat, the testator intended the legatee to have also his hire. The usual understanding of a gift of property, is, that it carries with it the rents, issues and profits. This, too, is the legal construction where the will shows nothing to the contrary. The postponement of the possession, is not inconsistent with an absolute property ; nor is it inconsistent with a right to the profits — as a general rule, they follow the property. The Bill discloses that the legatee was a minor, and an orphan. It is reasonable to presume, that the testator intended the hire of the slave to be applied to his education and maintenance during his minority. Again he directs the residuum to be paid to the residuary legatees within five years, within which time, the specific Legatee would not attain to twenty-one years of age. He then seems to have intended all claim of the residuary legatees before his estate, within that time to be settled. He could not have contemplated any increase of the residuum after that time. He could not have intended that they should have the hire of Mat, accruing after their legacies were paid. If they could not take it, why then, it goes to the specific legatee; or it is an undisposed of portion of his estate, subject to administration. That he intended to leave this hire undisposed of, is not at all reasonable or probable.
In relation to general legacies the rulo is, that when no time is fixed by the will for payment, they are payable at the end of the year after the death of the testator, and not before. This rule is said to be taken from the ecclesiastical Law, which gave the executor one year to get in the estate, and pay the debts and legacies. It is a convenient rule certainly. There ought to be a settled time, at which the executor ought to be liable to account, and not before. It relieves him from pressure by affording time for adjusting and commanding the resources of the estate; it also reduces to certainty what might be the fluctuating exercise of discretion in him, in reference to the priority of the legacies, and being fixed, the claims of all are in the main, no doubt equitably regulated by it. By our Statute, he is not liable to suit for any matter or cause against Ms testator, until twelve months after the probate of the will. As to his liability for legacies, the English Law governs. For the general rule, see Wood vs. Penoyre, 13 Vesey, 333, 334. Gibson vs. Bott, 7 Vesey, 96. Bechford vs. Tobin, 1 Vesey, 308. 1 Sek. & Less. 10. 1 Hovedeus Supl. to Vesey, 143, 144. Heath vs. Perry, 3 Atk. 101. Hearle vs. Greenbank, 3 Atk. 695, 716. Floyd vs. Williams, 2 Atk. 108. Maxwell vs. Wittinghall, 2 P. Wul. 62, 2 Roper on Legacies, ch. 12, p. 172. 2 Ibid, ch. 20, p. 184. 2 William’s Ex’rs, 1021, 2. 1 Sumner, R. 12, 13. 3 Dessaus. Reps. 387. 1 McCord’s Ch. R. 94. Ibid, 148. 14 Sergt. Sf Rawle, 238. As a necessary inference from this rule, interest is not generally payable upon a pecuniary legacy, until one year after the death of'the testator. For interest cannot be claimed in any case until the money is due, and from the time it is due. If the will provides that interest shall be paid before, of course, it must be paid according to the directions of the will. So also if the will fixes a future day for the payment of a general legacy, it is not payable until that day, and it does not bear interest till that day. See the authorities before cited — also, Sitwell vs. Bernard, 6 Vesey, 520, 529. Webster vs. Piale, 8 Vesey, 410, 413. Tyrrel vs. Tyrrel, 4 Vesey,1. 3 Vesey, 102. Crichett vs. Dolly, 3 Vesey, 10. 2 Williams, Ex’rs, 1024. There are some exceptions to these general rules, as to the time when interest is due. The
On the other hand, if they fall short, they cannot be made up from any other source. In relation to them, the elementary writers all say, that whatever produce accrues upon them from the death of the testator, as interest, rent, hire, or any other form of profit, and nothing more or less, belongs to the legatee; and that whether the enjoyment of the principal be postponed or not. I am not aware of a single authority which asserts a doctrine contrary to this. There are but few cases to be found, where a question as to the profit accruing upon a specific legacy, has been made. This is unquestionably owing to the universal consent of the profession to, and the acquiescing of the C ourts in the rule. In the argument of counsel, and in the opinions of the Bench, I find it invariably referred to as a thing conceded. A specific legacy is considered as separated from the general estate, and appropriated
I refer to a few cases, in which the rule I have stated has been recognised in Courts of the highest authority in England and America. In Webster vs. Hale, 8 Vesey, 410, one of the questions made, was whether a legacy of stock bore interest from the death of the testator, or from the end of one year thereafter, and this was made to depend upon the question, whether it was a spe-icfical legacy or a general legacy. The Masterof the Rolls said, “ "When legacies of stock are determined not to be specific, the value is always directed to be ascertained at the end of a year. The old dicta have been overturned by the modern cases; or at least, are totally neglected. In every direction, when once it is ascertained that a legacy is pecuniary, the interest is given from the end of the year.” In explanation of pecuniary legacies, it may be necessary to remark, that although there may be a specific legacy in money, yet these words, in this case, and generally, mean general legacies. Again, in the same case, the Master of the Rolls says : “Upon the other question, after the cases which have been decided, it is impossible to say these are not pecuniary legatees; and therefore, no inteiest is to be given upon any, except from the end of twelve months from the death of the testator.”
Lord Eldon, in discussing a similar question, concludes by saying, “ This being a specific legacy of stock, dividends are due, from the death of the testator.” 6 Vesey, 345. The bearing of these dicta upon this case, will be understood when it is remembered, that general legacies, where there is no time of payment specified, are not payable, and consequently do not bear interest until one year after the death of the testator. The struggle in these cases, on the part of the legatee, was to show that the legacies in question, were specific and not general; and for that reason, bore interest from the death of the testator.
In Gh-eene vs. Pigot, a legacy was left to a female infant, to be paid at twenty-one or at marriage, with interest at 4 per cent; and if she die before, to sink into the residuum. The Court ordered the legacy to be paid into Bank for security, and the prin
Mr. J. Story, in Sullivan et ure. vs. Winthrop et. al., in discussing the question whether a general legdcy bore interest from the death 'of the testator, recognises the rule in the following words:“Nor is this the case of a specific legacy of property or funds earning interest. If it were, I agree that whoever is entitled lo the specific property or find, is entitled to the income or increment, as aw adjunct.” 1 Sumner’s Reps. 12.
Precisely the question made in this record, came before the Supreme Court of Alabama, in Christian vs. Christian. The testator bequeathed as follows : “ I give to my grand-son John W. Chiistian, an equal dividend of the slaves, with the following named children, (naming them,) to be equally divided when James A. Christian arrives at the age of twenty-one years.” The guar
Let the judgment of the Court below be affirmed.