
    Alexander Gillon v. R. J. Turnbull Executor of William Brisbane.
    Jan. 1825. Where the testator gave a legacy to be paid out of the income of his estate, as soon as convenient after the expiration of one year from his decease, or sooner if his executors had funds, held that it bore interest from one year after testator’s death; and the legacy was ordered to be paid, though some debts still remained due, the estate being fully competent.
    This was a bill filed to obtain the payment of a legacy (together with interest) bequeathed by the late Mr William Brisbane, in and by a clause in his last will and testament, duly executed, and bearing date the 21st of October 1821. It was in the following words, “I give and bequeath unto Alexander Gillon in trust for my niece Sarah Gillon, and her children, five thousand dollars, to be paid out of the income .of my estate, as soon as convenient after the expiration of one year .from the time of my decease.”
    1825.
    
      Charleston.
    
    Afterwards, on the 29th of November 1821, the testator executed a codicil to his will, by which he gave a legacy of ‡2,000 to the Orphan House of Charleston, to be paid as soon as convenient after his decease, and he added the following directions: “ In order that my executrix and executors may be enabled to carry into full effect this codicil to my last will, I do freely order and direct that the payment of all my legacies contained in my said will (with the exception of that to my wife Mary) shall not be payable as therein directed, but shall commence one year after my decease, or as much sooner as my executrix and executors shall be in funds for the purpose.” The testator died very soon after executing the codicil, leaving his will and the codicil thereto in full force.
    The executor resisted the demand for the immediate payment of the legacy, and interest from one year after the death of the testator, on the ground that the debts were not all paid (though it was admitted that very little remained due) and that the income of the estate had not been adequate to pay the annuities and the legacies; and that as it would have been necessary to have sold part of the principal of the estate to raise the money, which was contrary to the intentions of the testator, therefore no interest ought to be allowed. The following statement exhibits the provisions of the will, and the situation of the estate 1 It appeared by the will and codicil that the following annuities and legacies were given by the testator.
    An annuity to his wife, to be paid out of the income of the estate, one moiety,, every six months; the first payment on the 15th of January after the death of the testator, $2000
    He also authorized his wife to dispose of by will $10,000, and in case of her not doing so he bequeathed $5000 to her niece, Mrs Edward Blake.
    
    An annuity to his brother, J. S. Brisbane, payable on the 15th of January, after the testator’s death, to be paid semi-annually, $500
    An annuity to A. F. Brisbane, to commence and be paid as above, $500
    $3000
    An annuity to his two adopted sons, to commence at twenty-one years of age, and continue to twenty-five years of age, to enable them to travel, each $2000, $4000
    These annuitants being boys, this provision did not require any immediate funds.
    Legacy to Mr Gillon, in trust for his wife and family, to be paid as soon as convenient after the expiration of one year from the time of the testator’s death, out of the the income of the estate, $5000
    Legacy to Abbot Brisbane, to be paid out of the income of the estate, in one year after the legacy to his niece, Mrs Gillon, has been paid, provided he (Abbot Brisbane) has attained twenty-one years of age, if not, then on his arrival at that age, $5000
    $10,000
    
      Brought up $10,000
    legacy to his niece,Maria Brisbane, to be paid out of the income of his estate, one year after the payment of the legacy to his nephew, Abbot Brisbane, $5000
    Legacy to his niece, Elizabeth Brisbane, daughter of A. F. Brisbane, to be paid as soon as convenient out of the income of his estate, after her arrival at the age of twenty-one years, $5000
    $20,000
    Legacy to his god daughter Mary B. Mayer, to be paid in a note of her husband’s $500.
    The testator directed that his two adopted sons (for whom he made other ample provisions in his will) should each receive a liberal education, besides the annuity of $2,000 each above mentioned.
    By an exhibit filed by the executor it appeared, that the annual income of the estate of the testator amounted (partly from dividends on stock, interest on bonds, &c.) to about $9230
    And the estimated expenses for taxes, insurance, repairs, and plantation expenses to about $1343
    Annuity to the widow, 2000
    Annuities to the two brothers, 1000
    Estimated expense of the two boys, 900
    -$5243
    Leaving an annual balance of $3987
    applicable to the payment of legacies. ■--
    On examining the accounts filed by the executor it appeared (as he admitted) that but few debts of no great amount remained to be paid, and that the executor had felt himself at liberty to pay and had paid the legacy of .$2,000 given by the codicil to the Orphan House of Charleston.
    
    Pecuniary le-o'RCIfiS OH which’no in-by thVwfii'611 bear interest of one year after testator’s a different in-Seated by the will; and this rule applies as ■well where lays aboutde" paying debts, moneyisin hand.
    oidlectíng^the funds will not even though’ fmpracticabie.
    De Saussube, Chancellor.
    From the data exhibited in this case it would appear that the legacy to Mr and Mrs Gillon ought now to be paid. It is the first legacy directed to be paid; the others are to follow that in succession ; and other legacies will fall due on the death of Mrs Brisbane, the widow, particularly a large one of ,$12,000 bequeathed to the testator’s adopted son, William Brisbane, at the death of his aunt, so that it is important to hasten the payment of the intermediate legacies.
    The question as to the interest claimed by the complainant on the legacy gives rise to more discussion and difficulty.
    It is alleged, and admitted, that the legatee made a demand for the payment of the legacy at the end of the year after the death of the testator. The rales on the subject of interest on legacies are very numerous, and some of them depend on nice distinctions. But I take the general rule to be' clear, that pecuniary legacies, on which no interest is given by the will, shall bear interest from the end of one year after the testator’s death. And this must prevail, unless there shall be something in the testator’s will indicating a different intention. Maddock, ° . in his Treatise on Equity, lays down the rule distinctly (Vol. II. p. 79, 80,2d Edit.); and he cites and is support-e(j by many decided cases, see 2 P. Wms, 25.343. 2 Atk. 109. 1 Scho. & Lefr. 11,12. 2Scho. & Lefr. 455. 1 Yes. 211. 310. 8 Ves. 413. He says this rule has been Copied for general convenience, and applies equally to cases where the debts cannot be arranged for ten years, as where there are no debts, and the property is imrnedi-ately tangible in the funds. 1 Scho. & Lefr. 12. And though, where legacies are given out of personal estate consisting of outstanding debts, those legacies cannot be paid till the money due the estate is collected, the Court holds the personal estate to be reduced into possession within a year after the death of the testator, and allows interest on the legacies from the time, unless some other period is fixed by the will; and this takes place though actual payment within that time be impracticable in many cases. In one case the fund did not become disposable in forty years, yet interest was allowed under the rule. Nor does a reference by the testator to the time at which his personal estate should be got in affect the legal presumption without the most plain and distinct indication of his intention that it should be so. See 2 Madd. Cha. 31, 2. 10 Yes. 334. 7 Ves. 534. 8 Ves. 413. 13 Ves. 233,4. 6 Ves. 528 in note, and 6 Ves. 520. It was argued that the testator indicated an intention that the legacy should not be paid until convenient out of the income of the estate, and therefore not to bear interest; but he couples these words with a reference to one year after his death. If these different expressions seem to be contradictory and to leave the intention doubtful, then the rule would apply; and he gives in a codicil this direction, that all his legacies should commence one year after his decease, or as much sooner as his executors should be in funds for that purpose. Much refined ingenuity was exercised by the counsel to shew, that the testator did not intend that this provision in the codicil should apply to the legacies, but merely to the annuities. And the argument would lead to a presumption against the plain words of the codicil, “ all my legacies.” Upon the whole, I am perfectly satisfied that this legacy is entitled to carry interest from the end of one year after the death of the testator until paid. It is therefore ordered and decreed, that the executor do pay the legacy of five thousand dollars bequeathed to Alexander Gillon for the use of his wife and children, together with interest on the same from one year after the death of the testator, in the course of the present year, with leave to the executor to apply to the Court in January next to sell a part of the estate if the legacy be not paid before that period. The amount of the principal to be paid into the hands of a trustee, to be named by the parties and approved by the Commissioner, to be held and secured in trust for the use of Alexander Gillon and his wife and children, according to the intention of the testator.- The costs to be paid by the executor, out of the estate.
    
      A reference by the testator to the time when the personal estate is to he got in, will not vary the rule, unless plainly to be implied from the will.
    
      s Dec. 1825.
    From so much of this decree as directed the payment of interest the defendant appealed, and made the following points.
    . First. That the general rule, that a legacy bears interest only from the time it became payable, unless otherwise directed by the will, applied here.
    
      Second. That this legacy not being payable according to the will till it should be convenient out of the income, and such convenience not having yet accrued, (as was decided by the Court’s allowing the executor one. year more to pay the legacy in) it could not bear interest until after the expiration of the year.
    
      ■Third. And that it was contrary to the testator’s intention, as collected from the whole will, that this legacy should carry interest.
    
      Dawson, for the motion.
    The payment of interest must depend on circumstances. One case can hardly be cited as authority in another. S Atk. 102. The case of Wood v. Penorye, 13 Ves. 325, was one of a specific legacy. Chaworth v. Beech, 4 Ves. Jun. 555. All the cases where interest has been allowed proceed on the ground, that the executor was either actually or constructively in possession of funds.'
    
      
      Pearsonv. Pearson, 1 Sebo. & Lefr. 12. Where the legacy is payable out of income it will not carry interest until the receipt of the income. Cas. Tern. Talb. 2.
    
      Eckhard, contra,
    cited Sitwell v. Bernard, 6 Yes. 520. -3 Hen. & Munf. 10. Bradwellv. Weeks, 1 Johns. Cha. Rep. 206. Cogdell v. Cogdell, 3 Desaus. 347.
    
      Pepoon, on the same side,
    cited 2 Mad. Cha. 9. Sibley v. Perry, 7 Yes. 522.
    
      Dawson, in reply.
    Was there any difference between the will and codicil “? If interest was given in this case it must be allowed in every case. If the executor be not in funds, either in law or in fact, interest is not payable. Income is not an outstanding fund. He cited 3 P. Wms, 252. Long v. .Short, 1 P. Wms, 403.
   The Court of Appeals delivered no formal opinion in this case, but stated, that they were satisfied with the decree of the Chancellor. The following certificate was delivered. “The Court in this case concur in opinion with the Chancellor. The motion is therefore refused.”

Decree affirmed.  