If by Infancy or Absence Legacies can the Money into the Bank, and laid out Cents. father, to have it paid into his hands, the court will grant an injunction; because it will not allow the infant's money to come into the father's hands. [Such being the rule of law respecting the invalidity of payments made to infant's executors, who were desirous of being discharged from their office, procured bills to be filed against them by the legatees, in order to dispose of those particular legacies under the direction and indemnity of a court of equity. To remedy this inconvenience, it was enacted by 36 Geo. 3, c. 52, s. 32, "That where, by reason of the infancy, or absence beyond the seas, of any person entitled to any not be paid, legacy, or to the residue of any personal estate, or any part may be paid thereof, chargeable with duty by virtue of this act, the person or persons having or taking the burthen of any will or testa31. per mentary instrument, or the administration of such personal estate, cannot pay such legacy or some part thereof, although he, she, or they may have effects for that purpose, or cannot pay such residue or some part thereof, although he, she, or they may have the same, or some part thereof, in his, her, or their hands, it shall be lawful for such person or persons to pay such legacy, or residue, or any parts or part thereof respectively, or any sum or sums of money on account thereof, after deducting the duty chargeable thereon, into the Bank of England, with the privity of the accountant general of the Court of Chancery, to be placed to the account of the person or persons for whose benefit the same shall be so paid; for payment of which money the said accountant general shall give his certificate as usual in such cases, on production of the certificate of the commissioners of stamps, that the duty thereon has been duly paid; and such payment into the Bank shall be a sufficient discharge for the money so paid in, provided the duty be also paid thereon as aforesaid; and such money when paid in shall be laid out by the said accountant general, without any formal request for that purpose, in the purchase of three pounds per centum consolidated annuities, which, with the dividends thereon, shall be transferred and paid to the person or persons entitled thereto, or otherwise applied for his or their benefit, on application to the Court of Chancery, by petition or motion, in a summary way (1).”—ED.] In what Case a Legacy shall bear By the civil law a testator cannot enjoin his executor to pay interest for the nonpayment of a legacy. And though Interest, and interest or usury be only forbidden by the civil law beyond such a sum, yet it being entirely prohibited by the canon law, it follows, à fortiori, that he cannot do it by that law (m). from Time. And by the laws of this realm, the receiving of interest for money was for a long time prohibited: but afterwards, from the unreasonableness of the thing itself, and the inconvenience thereof to society, these restrictions vanished by degrees, and (1) [See on this statute, Whopham (m) Ayl. Par. 342. v. Wingfield, 4 Ves. 630.] Legatee is an it became lawful to receive interest within certain bounds prescribed by the legislature; and as in other matters, so also in the case of legacies, the courts, both ecclesiastical and temporal, have allowed interest to be paid for legacies withheld in certain instances. And, generally, it is said, if a legacy be Where the bequeathed to be paid divers years after the testator's death, Infant, where this difference is to be observed; if the day were given in not. favour of the legatee being an infant, who could not safely receive it any sooner, then he shall have the profit; but if the respite was in favour of the executor, then the legatee shall have the bare legacy without interest (n). [The general rule is, that where a time of payment is named by testator, legacies will not carry interest before the arrival of that time.-ED.] Butler v. Freeman, June 22, 1743 (o). The grandfather of the plaintiff, by will, after directing his debts and legacies to be paid, gives all the rest and residue of his personal estate to his grandson, the plaintiff, at his age of twenty-one, and if he die before that age, then to the defendant, Freeman, whom he makes his executor. The plaintiff brought his bill for the interest of the residue, to be paid to him during his infancy. The defendant, Freeman, by his answer insisted, that the plaintiff is not entitled to it, unless he attains his age of twentyone, but that it ought to accumulate: and if the plaintiff dies before twenty-one, that it will equally belong to the defendant with the residue. The father of the plaintiff insisted, that the residue must be confined to what the testator left at the time of his death, and that the interest made after his death ought to be considered as an undisposed part, and go to him as next of kin to the testator, according to the statute of distribution: or if the court should be against him in this point, that then he is entitled to receive it for the maintenance of the plaintiff. By the Lord Chancellor Hardwicke: "I am of opinion, that the plaintiff is not entitled to the interest that arises from this residue; and though the words rest and residue must be confined to what shall be found at the death of the testator, after his debts, funeral expenses, and legacies are paid, yet that the interest ought to accumulate till the plaintiff arrives at his age of twenty-one, and as often as it amounts to a competent sum to be placed out by a trustee appointed by the master. I am not quite so clear how the interest would go, if the accident should happen of the plaintiff's dying before twenty-one, whether to the representative of the plaintiff, or to the defendant, Freeman: but that is not necessary to be inquired into at this time. As to the father's claim, I am of opinion he has no right to the interest, because the testator has given all the rest and residue of his personal estate, so that he cannot be said to have left any part undisposed, and conCases in Chancery, 92.] (0) 3 Atk. 58. (n) Went. 352. [See the case of Bilson v. Sanders, Bunb, 240; Select It makes no difference if the Legacy be vested. sequently can have no title to it as next of kin under the statute of distribution. For as the devise of the residue is contingent, it not vesting till the grandson's age of twenty-one, the interest is so likewise, and must accumulate in the meantime: nor can the father by the rules of this court entitle himself to it as maintenance for the infant, because it is given by a grandfather to a grandson upon a contingency of attaining his age of twenty-one; and as nothing is said how the produce of it shall be applied, he is not entitled as a grandson to be maintained out of the produce. The law of nature obliges only fathers to maintain their children; and unless the child, from the mean circumstances of the parent, is in danger of perishing for want, the court will not direct the interest that shall be made of a contingent legacy to be applied for that purpose: so that unless the parent is totally incapable, or under particular circumstances, as having a numerous family of children, and is bordering upon necessity, the law of the land and of nature make it incumbent on the parent to maintain his child. In the case of Acherley v. Vernon (p), where the testator, Mr. Vernon, had left 6000l. to the plaintiff, his niece, to be paid to her at her age of twenty-one, and she insisted that the interest of this money ought to be allowed for her maintenance; Lord Macclesfield was of opinion, that the interest in that cause ought to follow the principal, for it was a vested legacy, and payable at twenty-one. But there it was a sum of money separated and detached from the rest of the estate, and a vested legacy; here it is a contingent one, and not a specific sum, but of the residue of his personal estate, which makes a difference between the cases; and the father likewise in the present case possessed of a good estate, and in considerable circumstances.' Therefore his lordship decreed the interest which has arisen upon the residue of the testator's personal estate since his death, or which may arise, to be paid into the hands of a trustee, to be laid out in real or government securities as often as it shall amount to a competent sum. Heath v. Perry, July 2, 1744 (q). The testator by his will gave 1000l. a-piece to five brothers and sisters (but who were no relations to him), to be paid to them at their respective ages of twenty-one, in case they shonld respectively attain that age, and not otherwise; and if any of them should happen to die before they attain their respective ages of twenty-one, that then and in such case the legacy or legacies of 1000l. so given to them respectively shall be void. The legatees brought a bill for interest on their legacies. By Lord Hardwicke: Cases of this kind how far a legatee, who is not entitled to the payment of the legacy immediately, shall have interest in the meantime, depend upon particular circumstances. Some (p) 1 P. Wms. 783. (9) 3 Atk. 101. upon relationship, some upon the necessities of legatees, and most of them upon the particular penning of wills; and there is hardly one case which can be cited that is a precedent for another. Some things are certain in these cases; for if a legacy is given generally at marriage, or at twenty-one, then the vesting and time of payment are the same, and shall not vest till marriage or twenty-one. To go one step further; where a legacy is actually vested, as if given to an infant payable at twenty-one, yet it shall not carry interest, unless something is said in the will that shows the testator's intention to give interest in the meantime. But all these cases are subject to this exception, if it is in the case of a child; for then let a testator give it how he will, either at twenty-one, or at marriage, or payable at twenty-one, or payable at marriage, and the child has no other provision, the court will give interest by way of maintenance, for they will not presume the father so unnatural as to leave a child destitute. But in the present case the legatees are mere strangers to the testator; and nothing shall be taken out of the estate for their benefit during their nonage. A legacy payable at any given time whatsoever does not carry interest till that time, whether it is a vested interest or not: the time of payment must govern the commencement of interest, with this difference only, that a legacy given by a parent to a child shall carry interest from the death of the testator, on account of the obligation attaching on the person who gives it to provide a maintenance for his child(r). But there is no exception in favour of a wife, as for a child, to the rule, that a legacy does not bear interest before it is payable (s). But where legacies were devised payable out of money due on mortgage, when the same should be recovered, interest at the rate of 41. was decreed from the death of the testator, and it was held not to depend on the time when the money was recovered (t). due, from [In these cases the time of payment is named by the tes- If Interest be tator; but supposing interest to be due, another question what Time it arises, from what time the interest shall accrue. Concerning shall accrue. which, in the case of Jolliffe v. Crew, E., 1701 (u), it was determined as follows: viz. If a legacy be devised generally, and no time ascertained for the payment, and the legatee be an infant, he shall be paid interest from the expiration of the first year after the testator's death; but it seems a year shall be allowed, for so long the statute of distribution allows before the distribution be compellable, and so long the executor shall have, that it may appear whether there be any debts. But if the legatee be of full age, he shall only have interest from the time of his demand after the year; for no time of payment being set, it is not payable but upon demand, and he shall not (r) [Crickett v. Dolby,] 3 Ves. 10; [Tyrrell v. Tyrrell,] 4 Ves. 1. (s) Stent v. Robinson, 12 Ves. 461. (t)[Wood v. Penoyre,] 13 Ves. 325. Points de- alty. Reversion. have interest but from the time of his demand: otherwise it is in case of an infant, because no laches are imputed to him. But where a certain legacy is left payable at a day certain, it must be paid with interest from that day. And in the case of Maxwell v. Wettenhall, T., 1723 (u), the following points were resolved: 1, If one gives a legacy charged upon land, which yields rents and profits, and there is no time of payment mentioned in the will, the legacy shall carry interest from the testator's death, because the land yields 2. On Person- profit from that time. 2. But if a legacy be given out of a personal estate, and no time of payment mentioned in the will, this legacy shall carry interest only from the end of the 3. On a dry year after the death of the testator. 3. If a legacy be given, charged upon a dry reversion, here it shall carry interest only from a year after the death of the testator, a year being a 4. On Mort convenient time for sale. 4. If a legacy be given out of a personal estate, consisting of mortgages carrying interest, or of stocks yielding profits half-yearly, it seems in this case the legacy shall carry interest from the death of the testator. 5. If a legacy be brought into court, and the legatee hath brought into notice of it, so that it is his fault not to pray to have the money, or that the money should be put out, the legatee in such case shall lose the interest from the time the money was brought into court; but if the money was put out, the legatee shall have the interest which the money put out by the court did yield. gage. 5. Legacy Court. Quantum of Interest is generally 41. per Cent. As to the quantum of interest, the determinations have been various. In the case of Guillam v. Holland, October 14th, 1741 (x), Lord Hardwicke said, where a portion is charged upon land, and the will doth not mention interest, the court will not give any more than 47. per cent., though the legal interest is 51. per cent.: and this rule hath also been extended to the cases of legacies and portions charged upon personal estate. In the case of Incledon v. Northcote, March 2nd, 1746 (y), Lord Hardwicke said at first, as no more had been allowed for many years than 47. per cent. interest to children for maintenance, he did not care to break through the rule: but afterwards, in consideration of the interest of money being altered lately, mortgages being then at 437. per cent., and several at 51. per cent., he ordered the children should have 47. interest. In Bryant v. Speke, December 6th, 1748 (z), Lord Hardwicke said, the general rule is that legacies out of real estate carry 11. per cent. lower than legal interest; but if out of personal estate, because of the higher interest of money than land, it shall carry the legal interest, unless particular circumstances induce the court to vary therefrom; and this, he said, (u) 2 P. Wms. 26. (x) 2 Atk. 343. (y) 3 Atk. 438. |