| Ala. | Jan 15, 1850
The questions for our revision depend upon the construction to.be placed upon the will of Robert Walker, deceased, by which after making provision for the payment of his debts and funeral expenses, .and bequeathing sundry slaves and tracts of real estate to his wife and children, and. also several pecuniary legacies, he makes the following bequest in the tenth item which is the one under which the plaintiffs in error claim, namely: “I give and bequeath to the heirs of my son, Robert B. Walker, whose names are James Robert Walker and Hickinson P. Walker, each the sum of one thousand dollars, to be paid them as they become of age by the administrator of this my last will and testament; and in case either or both of said legatees should die before they shall come of age, the amount herein bequeathed to them as aforesaid to be equally divided among my daughters, Julia Hill, Mary Moody and Martha McGuire.” The testator,’by the eleventh and tweltli clauses of the will, after providing for taking a schedule of his entire estate by three discreet free-ho-lders, said schedule to be appended to his will, and also for the sale- of his growing crop, stock, &c., out of the proceeds of which he desired that his debts, funeral expenses and the several legatees should be paid, and-the remainder if any distributed, provides by the thirteenth-clause -as follows: “I also will and ordain that my executor
It is insisted by the counsel for the plaintiffs in error that notwithstanding the tenth clause of this will, which makes the legacies to depend upon the contingency of the legatees arriving at the age of twenty-one years, at which time the legacies are made payable, yet the thirteenth clause being as to the time of payment repugnant to the tenth, must so far modify and control it, upon the established rule of interpreting wills, that where two clauses are repugnant to each other so that they cannot be reconciled or possibly stand together, the clause that is posterior in local position shall prevail. — Jarman on Wills, 411-12, and authorities cited in note a to 1 Amer. edit., and see Merrall v. Sutton, 4 Beav. 478. We, however, do not agree with the counsel in the proposition that the will before us does present any irreconcilable conflict. On the contrary, we feel no hesitation in pronouncing that the testator in the thirteenth clause had no reference to the legacy bequeathed by the tenth item. He evidently is refering to the pecuniary legacies for the payment of which he had previously fixed no time. There were several of these, and it is but reasonable to suppose that the testator intended to fix the time when as well as the fund out of which they should be paid. If we transpose this will and read the thirteenth clause, as inserted between the ninth and tenth clauses, every one would be impressed at once with the conviction that the construction we have placed upon this will is but carrying into effect the true intention of the testator. It is allowable to resort to this transposition to reconcile the supposed contradiction. Mr. Jarman, in his work on Wills, (vol. 1, p. 415-16,) says: “The rule which sacrifices the former of several contradictory clauses is never applied but on the failure of every attempt to give to the whole such a construction as will render every part of it effectual. In the attainment of this object the local order of the limitations is disregarded, if it be possible by the transposition of them to deduce a consistent disposition from the entire will.” The clear intention of the testator was that these two grandchildren should take the legacies bequeathed them only in the event that they attained to the age ■ of majority. This age they have not yet attained and are not
As'to whether these legatees will be entitled to interest upon • their legacies when the same become payable according to the tenth clause of the will, is a question not now presented. We therefore express no opinion upon it. But we are called upon -to determine whether the court below committed an error in refusing to set apart a sum of money as interest upon these legacies for the support and education of these wards during their minority. Waiving the question whether in a case situated like the present the Orphans’ Court possesses the jurisdiction to decree such appropriation, if the terms of the bequest would justify the construction contended for, we are of opinion that under the will no such provision is made or authorised. It seems to be the established rule that a legacy payable at a future day does not carry interest until after it is payable.. An exception to this rule obtains in favor of a cldld who has no other provision made for his or her maintenance in the mean time by the will, but this exception according to the decided preponderance of authority is not allowed in favor of grandchildren. In Butler, an infant, by his guardian, v. Freeman, the grandfather of the plaintiff by his will after directing his debts, &c. to be paid, bequeathed all the rest and residue of his personal estate to his grandson, the plaintiff, at his age of twenty-one, and in the event of his death before arriving al that age, then to the defendant, Freeman, whom also he appointed exe
Our conclusion is that there is no error in the decree of the Orphans’ Court, and it is consequently affirmed.