before that age, his representatives shall receive it out of the testator's personal estate, at the same time that it would have become payable, in case the legatee had lived (63). This distinction is borrowed from the civil law (e); and its adoption in our courts is not so much owing to its intrinsic equity, as to its having been before adopted by the ecclesiastical courts. For, since the chancery has a concurrent jurisdiction with them, in regard to the recovery of legacies, it was reasonable that there should be a conformity in their determinations; and that the subject should have the same measure of justice in whatever court he sued (f). But, if such legacies be charged upon a real estate, in both cases they shall lapse for the benefit of the heir (g); for, with regard to devises affecting lands, the ecclesiastical court hath no concurrent jurisdiction (64). And, in case of a (e) Ff. 35, 1, 1 & 2. (f) 1 Equ. Cas. Abr. 295. (g) 2 P. Wms. 601. (63) But it seems, if the testator's personal representatives were to be accountable for interest, and the delay of payment, as to the principal, was only directed with reference to the minority of the legatee, his executor or administrator may claim the legacy forthwith, provided a year has elapsed since the death of the original testator. (Crickett v. Dolby, 3 Ves. 13; Cloberry v. Lampen, 2 Freem. 25; Anonym. Ibid. 64; Anonym. 2 Vern. 199; Green v. Pigot, 1 Br. 105; Fonnereau v. Fonnereau, 1 Ves. sen. 119.) But a small yearly sum directed to be paid for the maintenance of the infant legatee, will not be deemed equivalent, for the purpose of vesting a legacy, to a direction that interest should be paid on the legacy. (Chester v. Painter, 2 P. Wms. 336; Hanson v. Graham, 6 Ves. 249; Roden v. Smith, Ambl. 588.) If a bequest, however, be made to an infant, "at his age of twenty-one years, and if he die before that age, then over to ano. ther;" in such case, the legatee over does not claim under the infant, but the bequest over to him is a distinct substantive bequest, and is to be paid on the death of the infant under twenty-one. (Laundy v. Williams, 2 P. Wms. 480; Crickett v. Dolby, 3 Ves. 16.) (64) Where legacies are charged upon land, or the gift at all savours of the realty, the trusts must be carried into execution with analogy to the common law. (Scott v. Tyler, 2 Dick. 719; Long v. Ricketts, 2 Sim. and Stu. 183.) And the general rule of common law is, that legacies, or portions, charged on lands, do not vest till the time of payment comes. (Harvey v. Aston, 1 Atk. 378, 379; S. C. Willes, 91; Harrison v. Naylour, 2 Cox, 248.) But a testator may make a legacy vested and transmissible, though charged on a real estate, and payable at a future time, provided he distinctly expresses himself to that effect, or the context of the will affords a plain implication that such was his intention. (Hargrave's note to Co. Litt. 237.) In coming to a just conclusion as to this matter, it AND ADMINISTRATION. * vested legacy, due immediately, and charged on land or money in the funds, which yield an immediate profit, *in- [ 514 ] terest shall be payable thereon from the testator's death (65); but if charged only on the personal estate, which cannot be immediately got in, it shall carry interest only from the end of the year after the death of the testator (h) (66). (h) 2 P. Wms. 26, 27. has been often said, it ought to be examined whether the testator has directed payment to be postponed, from a consideration of circumstances merely personal as to the legatee, or with reference to the condition of the estate to be charged, and the interests of others therein. When the direction, that the charge shall not be raised till a future day, refers to the circumstances of the person to take (as, for instance, if the charge be intended for a portion), there the construction has been, that the gift is so connected with the purpose for which it was given, that if such purpose fail, the land ought not to be charged: but it has been as repeatedly said, a legacy vests immediately in interest, though it be charged on lands, if the time of payment appears to have been postponed only out of regard to the circumstances of the estate. (Lowther v. Condon, 2 Atk. 128; Dawson v. Killet, 1 Br. 123; Godwin v. Munday, Ibid. 194; Smith v. Partridge, Ambl. 267; Sherman v. Collins, 3 Atk. · 320.) (65) The old authorities are in conformity with the text, and hold, that, where a fund, of whatever nature, upon which a testator has charged legacies, is carrying interest, there, interest shall be payable upon the legacies, from the time of the testator's death. But that is exploded now by every day's practice. Though a testator may have left no other property than money in the funds, interest upon the pecuniary legacies he has charged thereon is now never given till the end of a year after his death. (Gibson v. Bott, 7 Ves. 97.) The rule is different with respect to legacies charged on land. Whether the reason assigned for this distinction, in the text, and in Maxwell v. Wettenhall, (1 P. Wms. 25,) be the true one, has been doubted: a fund, consisting of personalty, may be" yielding immediate profits," as well as lands, but, it is obvious that the reason of the rule as to the commencement of interest upon legacies given out of personal estate, which is a rule adopted merely for convenience, (Garthshore v. Chalie, 10 Ves. 13; Wood v. Penoyre, 13 Ves. 333,) cannot apply to the case of legacies not dependent on the getting in of the personal estate, and charged upon lands only; in such case, interest, it has been said, must be chargeable from the death of the testator, or not at all. (Pearson v. Pearson, 1 Sch. & Lef. 11; Spurway v. Glyn, 9 Ves. 486; Shirt v. Westby, 16 Ves. 396.) (66) As a legacy, for the payment of which no other period is assigned by the will, (Anonym. 2 Freem. 207,) is not due till the end of a year after the testator's death; (Hearle v. Greenbank, 3 Atk.716;) and as interest can only be claimed for non-payment of a demand actually due; it is an undisputed general rule, that although a legacy vests (where no special intention to the contrary appears) at the testator's death, (Garthshorev. Chalie, 10 Ves. 13,) it does not begin to carry interest till a year afterwards, unless it be charged solely on lands. (See the Of donations mortis causa. Besides these formal legacies, contained in a man's will and testament, there is also permitted another death-bed last note.) That general rule, however, has exceptions: (Raven v. Waite, 1 Swanst. 557; Beckford v. Tobin, 1 Ves. sen. 310:) a specific bequest of a corpus passes an immediate gift of the fund, with all its produce, from the death of the testator. (Kirby v. Potter, 4 Ves. 751; Barrington v. Tristram, 6 Ves. 349.) Another exception arises when a legacy is given to an infant by a parent, or by a benefactor who has put himself in loco parentis; in such case, the necessary support of the infant may require immediate payment of interest. (Lowndes v. Lowndes, 15 Ves. 304; Heath v. Perry, 3 Atk. 102; Mitchell v. Bower, 3 Ves. 287.) It must, however, be observed, this latter exception operates only when the child is otherwise unprovided for: when a father gives a legacy to a child, it will carry interest from the death of the testator, as a maintenance for the child, where no other fund is applicable for such maintenance; (Carew v. Askew, 1 Cox, 244; Harvey v. Harvey, 2 P. Wms. 22;) but where other means of support are provided for the child, then the legacy will not carry interest from an earlier period than it would in the case of a bequest to a perfect stranger. (Wynch v. Wynch, 1 Cox, 435; Ellis v. Ellis, 1 Sch. & Lef. 5; Tyrrel v. Tyrrel, 4 Ves. 5.) And the general rule as to non-payment of interest upon a legacy, before such legacy becomes due, must not be broken in upon by an exception in favour of an adult legatee, however nearly related to the testator; (Raven v. Waite, 1 Swanst. 588;) nor, as illegitimate children are no more, in legal contemplation, than strangers, (Lowndes v. Lowndes, 15 Ves. 304,) will interest be allowed, by way of maintenance for such legatees; (Perry v. Whitehead, 6 Ves. 547;) unless it can be satisfactorily collected from the will, that the testator intended to give interest. (Beckford v. Tobin, 1 Ves. sen. 310; Ellis v. Ellis, 1 Sch. & Lef. 6; Newman v. Bateson, 3 Swanst. 690.) Even in the case of a grandchild, an executor must not take upon himself to pay interest upon a legacy by way of maintenance, when that is not expressly provided by the will; for, though a court of equity will struggle in favour of the grandchild, (Crickett v. Dolby, 3 Ves. 12; Collis v. Blackburn, 9 Ves. 470,) yet, it seems, there must be something more than the mere gift of a legacy, something indicating that the testator pat himself in loco parentis, to justify a court in decreeing interest for a grandchild's maintenance. (Perry v. Whitehead, 6 Ves. 547; Rawlins v. Goldtrap, 5 Ves. 443; Hill v. Hill, 3 Ves. & Bea. 186.) But, of course, even when a legacy to a grandchild will never become due unless he attains his majority, still, maintenance may be allowed for his support during his infancy, provided the parties to whom the legacy is given over in case of the infant's death, are competent, and willing, to consent. (Cavendish v. Mercer, 5 Ves. 195, in note.) Under any other circumstances, when a legacy to infants is not given absolutely, and in all events, but is either not to vest till a given period, or is subject to being devested by certain contingencies, upon the occurrence of which it is given over; (Errington v. Chapman, 12 Ves. 25;) if the words of the will do not authorise the application of interest to the maintenance of the infant legatees, a court of equity never goes further than to say that, if it can collect before it all the individuals who may be entitled to the fund, so as to make each a compensation for taking from him part, it will grant an allowance for maintenance; (Errat v. disposition of property; which is called a donation causa mortis. And that is, when a person in his last sickness, apprehending his dissolution near, delivers or causes to be delivered to another the possession of any personal goods, (under which have been included bonds, and bills drawn by the deceased upon his banker,) to keep in case of his decease. This gift, if the donor dies, needs not the assent of his executor: yet it shall not prevail against creditors; and is accompanied with this implied trust, that, if the donor lives, the property thereof shall revert to himself, being only given in contemplation of death, or mortis causa (i) (67). (i) Prec. Chanc. 269; 1 P. Wms. 406, 441; 3 P. Wms. 357. Barlow, 14 Ves. 203; Marshall v. Holloway, 2 Swanst. 436; Ex parte Whitehead, 2 Younge & Jerv. 249,) or, where there is no gift over, and all the children of a family are to take equally, there, although other children may possibly come in esse after the order made, yet, all the children, born or to be born, will be held to have a common interest; and therefore, the interest of the fund, as far as it may be requisite, will be applicable for maintenance. (Fairman v. Green, 10 Ves. 48; Greenwell v. Greenwell, 5 Ves. 199; Errat v. Barlow, 14 Ves. 204; Haley v. Bannister, 4 Mad. 280.) But, if the will contain successive limitations, under which persons of another family, and not in being, may become entitled; it is not sufficient that all parties, presumptively entitled, then living, are before the court; for none of the living may be the parties who, eventually, may become entitled to the property. In such a case, an order for interest by way of maintenance might be, in effect, to give to one person the property of another. (Marshall v. Holloway, 2 Swanst.436; ex parte Kebble, 11 Ves. 606.) No exception is to be made, in favour of the testator's wife, to the general rule that, a pecuniary legacy does not bear interest before the time when the principal ought to be paid, unless a distinct intention to give interest from an earlier period can be fairly collected from the words of the testator's will. (Stent v. Robinson, 12 Ves. 461; Lowndes v. Lowndes, 15 Ves. 304; Raven v. Waite, 1 Swanst. 559.) Great part of this note is extracted from 1 Hovenden's Suppl. to Ves. jun. Rep. 144, 145. (67) A donatio mortis causá has many of the properties of a legacy; it is liable to debts, and is dependent on survivorship. (Tate v. Hilbert, 2 Ves. jun. 120; Jones v. Selby, Prec. in Cha. 303; Miller v. Miller, 3 P. Wms. 357.) It is not a present absolute gift, vesting immediately, but a revocable and conditional one, of which the enjoy. ment is postponed, till after the giver's death. (Walter v. Hodge, 2 Swanst. 98.) On the other hand, though liable to be defeazanced, it must, subject to such power of revocation, be a complete gift inter vivos, and therefore requires no probate; (Ward v. Turner, 2 Ves. sen. 435; Ashton v. Dawson, Sel. Ca. in Cha. 14;) though a question has been made whether, as such a gift is only to take effect in case of the donor's death, it ought not to be held so far testamentary as to be li 514 This method of donation might have subsisted in a state of nature, being always accompanied with delivery of actual able to legacy duty. (Woodbridge v. Spooner, 3 Barn. & Ald. 236.) A donatio mortis causá plainly differs from a legacy in this particular,—the subject of gift must in the former case be delivered by the donor; in the latter case, by his representative. (Walter v. Hodge, 2 Swanst. 98.) So, the distinction between a nuncupative will, and a donatio mortis causá is, that the bounty given in the first-named mode is to be received from the executor; but in the latter case may be held against him, and requires no assent on his part, the delivery having been completed by the donor himself. (Duffield v. Elwes, 1 Sim. & Stu. 244; Ward v. Turner, 2 Ves. sen. 443.) The greater number of cases upon this subject have turned on the question of actual tradition of the gift; the general rule, according to which delivery is necessary, is never now disputed; but whether such delivery has, or has not, been legally completed, or whether the nature of the gift constitutes an exception, exempting it from the general rule, are points which still, not unfrequently, present debateable ground. (Tate v. Hilbert, 2 Ves. jun. 120; Lawson v. Lawson, 1 P. Wms. 441.) Where actual tradition is impracticable, if the donor proceed as far as the nature of the subject admits towards a transfer of the possession, effect may be given to his intended bounty; thus, a ship at sea has been held to be virtually delivered by a delivery of the bill of sale thereof, defeasible on the donor's recovery; and delivery of the key of a warehouse, or of a trunk, has been determined to be a sufficient delivery of the goods in such warehouse, and of the contents of the trunk; for, in these instances, the bill of sale and the keys were not considered as mere symbols, but as the means of obtaining possession of the property. (Brown v. Williams, cited in 2 Ves. sen. 434; Jones v. Selby, as cited Ibid. p. 441.) A mere symbolical delivery, however, will not be sufficient; therefore, there can be no donatio mortis causá of a simple contract debt; (Gard.ier v. Parker, 3 Mad. 185;) though there may of a bond; (Snellgrove v. Bailey, 3 Atk. 214;) for, notwithstanding it is a chose en action, some property is conveyed by the delivery. (Ward v. Turner, 2 Ves. sen. 442.) But, the case of a bond-debt is an exception, not a rule; and where a bond is only a collateral security for a mortgage debt, the delivery of the bond will not be a complete gift of the mortgage. (Duffield v. Elwes, 1 Sim. & Stu. 244.) A cheque drawn by the donor on a banker, (Tate v. Hilbert, 4 Br. 291,) or a promissory note payable to him, (Miller v. Miller, 3 P. Wms. 357,) cannot, it seems, be disposed of by way of donatio mortis causá; no banker, indeed, is justified in paying a cheque after the death of the drawer; and a promissory note, not being a negotiable security payable to the bearer, must come under the same consideration as any other simple contract debt; and as the amount thereof could only be sued for in the name of the executors, that seems a sufficient reason why it could not be made the subject of a donatio mortis causá. (Miller v. Miller, 3 P. Wms. 357.) It is to be observed, that although there may have been a complete delivery of the gift, yet, if the possession be not continued in the donee, but the donor resume it, the gift (whether such resumption of possession be intended to have that effect, or not,) is at an end. (Bunn v. Markham, 7 Taunt. 232; S. C. 2 Marsh. 539.) |