Van Bramer v. Executors of Hoffman

2 Johns. Cas. 200 | N.Y. Sup. Ct. | 1801

Radcliff, J.

delivered the opinion of the court. If a legacy be charged on land, and no time of payment is mentioned in the will, the rule is, that it shall carry interest from the time of the testator’s death, because *the land yields rents and profits. (3 Wooddes. 520. 2 Salk. 415. 1 Ves. 310.)(a) But this is not to be considered as a legacy chargeable on real estate; for although the moneys to be paid by the devisee of the testator are so *202chargeable, and are the fund out of which the legacy is to be paid, yet the charge on the real estate was not made with a view to this legacy, or for the benefit of the legatee, but for the purpose of raising a general fund in the hands of the executors ; and which, when paid to them, is to be regarded as personal estate. The legacy is to be paid out of this fund, which is of a larger amount, and not appropriated solely to this object. In this point of view, it is immaterial whether the real estate produced profits or not.

Where a legacy is given to a child, payable at a particular time, and no provision is made for its maintenance, equity will decree interest from the testator’s death, by way of maintenance. (1 Ch. Ca. 60. 1 Ves. 307, 310. 2 Vent. 346. 2 Atk. 330. 3 Atk. 102. 2 Bro. C. C. 69. 3 Wooddes. 520.) But this is not the case of a child destitute of any provision for its support, and on that account entitled to interest as a suitable maintenance. And the rule does not apply to a legatee who is a grandchild. (1 Ves. 211. 1 Atk. 505. 2 Atk. 330. 3 Atk. 101.) Besides, the legatee in the present case had a father living, as we are to presume, and capable of maintaining her. There are other cases, also, in which a court of chancery refuses to grandchildren

*the relief afforded to children who are legatees. (2 Fonb. 32.)

We are of opinion, therefore, that.the legacy in the present case ought to carry interest from the time it was due, and not before ; and it was due when the legatee arrived at full age.

Judgment accordingly.(a)

(a) [Old Note.] If a legacy be charged on personal estate, as mortgages bearing interest, or on stock yielding profits, the same prevails. 3 Wooddes. 520. If it is to come generally out of the personal estate, and no time of payment is fixed, it carries interest from one year after the testator’s death. 3 Wooddes. 520. 1 Ves. 310. So, if a legacy be charged on a dry reversion it will carry interest after one year, that being a convenient time for the sale. Where a legacy is payable at a certain time, it will bear interest from that time, though not demanded. 3 P. Wms. 125. 2 Salk. 415, 416. 1 Vern. 262. 2 Vez. 568. 3 Bro. C. C. 419.

(a) See Jarman on Wills, Perkin’s ed. 759 ; Crickett v. Dolby, 3 Ves. Jr. Sumner’s ed. 10, and note ; Lupton v. Lupton, 2 Johns. Ch.; Dawes v. Swan, 4 Mass. R. 208; see Miles v. Hested, 5 Binn. 477, and references.