Smith v. Moore

| Vt. | Jan 15, 1853

The opinion of the court was delivered by

Bennett, J.

The only question in this case relates to the interest on the legacy bequeathed to the two grand-children of the testator. The provision in the will gives them $400, to be paid to them j that is, $200 to each one of them, upon their becoming twenty-one years of age; and if one died before he became of age, then the whole sum was to be paid to the survivor; and if both died before that event, then the $400 was given to the other two children of the testator. C. M. Smith, one of the grand-children, died before he was twenty-one years of age; and the orator claims the legacy of $400 and the interest on it from the death of the testator in July, 1837.

C. M. Smith was born in 1834, and died, in 1840.- The orator, the day he became of age, or the next day, demanded payment of the $400, and the interest, which he claimed. This was refused ; and- one ground of the refusal was, that the $200 given to C. M. Smith, could not be claimed until he would have been of age, if he had lived. Soon after, the defendant tendered the $400 to the orator, and interest from the time he was twenty-one years of age, and this he refused. The Chancellor held,-that as C. M. Smith died while a minor, the $400 was payable when the orator became of age; and this is the construction that the defendant put upon the will, when he made the tender, and the appellant has no reason to complain of this construction. We think there is no claim for interest until the legacy was payable. The general rule is, that a legacy to be paid at a future day, does not carry interest till due; and the rule applies to infants as well as adults ; and in those cases where a legacy is given to an infant, to be paid when he is of age, and it has been held to carry interest before it became ’ due, it was treated as an exception, and .only served to prove the general rule.

1 Peere Wms. 783. Nichols v. Osborn, 2 Peere Wms. 420. The case of a parent and child is an exception to the general rule ; and this, upon the ground that it must have been the intention of the parent to have the interest paid as a means of support of the infant from time to time, where the Will made no other provision for it. See Tyrell v. Tyrell, 4 Vesey 4; and it seems to be the-current of the authorities, that this exception does not extend to grand-children, and especially if it does not appear that the grandchildren were dependent upon the grand-parent for support, and needed the interest for that purpose. No such facts appear in this case. Van Bramer v. Executors of Hoffman, 2 Johnson’s Cases, 200. Lupton v. Lupton, 2 John. Chan. 628. Houghton v. Harrison, 2 Atk. 329. Perry v. Whitehead, 6 Vesey 546.

The fact relied upon, that the real estate of the testator was productive, and that when sold, the notes were on interest from date, cannot change the general rule. It has no tendency to show that it was the intent of the testator that interest should be paid on this legacy, as an exception to the general rule.

The decree of the Chancellor is affirmed, with costs in this court;