
    Quarles’s Executor v. Quarles and Others.
    Friday, June 21st, 1811.
    1. Will — Bequest of Slaves to Legatee on Attaining Majority — Right to Intermediate Profits. — Where slaves are specifically bequeathed to a child, when he or she shall attain the age of 21 years, or shall marry, and no provision is made expressly for maintenance in the mean time, their intermediate profits, if not otherwise disposed of, do not pass by a general residuary clause, but go to the legatee.
    2. Same — Same—Interest on Profits. — In such case, the legatee is also entitled to interest on the profits from the time of the receipt thereof by the executor; no good reason appearing for his failure to apply the principal to the use of the legatee.
    3. Legatee — Joint Suit — Decree. — Though specific legatees jointly sue, the decree ought to be several, conformably to their respective rights.
    This was a suit in chancery in the county court of Eouisa, on behalf of John Quarles, William G. Poindexter and Jane his wife, and Patsy Quarles, the three younger children of William Quarles, deceased, against his executor, to recover the profits of certain slaves specifically bequeathed by the testator to the several plaintiffs, when they should (respectively) attain the age of twenty-one years, or should marry. Annexed to each bequest was a provision that, “if either, or all, of the above negroes should die before they should come into the legatee’s possession, they should be replaced by others equally valuable.”
    The testator also devised to the plaintiff John, and his heirs, certain lands, after his mother’s death ; to each of the plaintiffs a horse and saddle, and feather bed and furniture ; and to the female plaintiffs 251. each, when they should respectively attain the age of twenty-one years, or should marry. He directed, moreover, the sum of 501. to be reserved out of his estate, and kept in the hands of his executor for the education of the plaintiffs. * After sundry devises and bequests to the widow and elder children, the will concluded with directing an equal division of the residue, not disposed of, among all the children.
    The plaintiffs contended that, as the will appointed no particular fund for their maintenance during their minorities, their father’s, intention was that they should be maintained from the annual profits of the slaves bequeathed to them, and the interest accruing on their shares of the residuary fund; the said profits and interest being not more than sufficient to maintain them in a decent and comfortable manner.
    The defendant in’ his answer opposed the’ claim on the ground that considerable real and personal property was devised to the mother of the plaintiffs, and the respondent supposed the testator intended to make no. other provision for their maintenance, as he well knew they would enjoy all the profits of that estate, of which no part would be received by the elder children, who were by a. former wife. The respondent farther stated that the estate left the plaintiffs ought to-have been sufficient to support them ; that they had lived with their mother until the marriage of Jane; and the other two still lived with her ; that they had been at no expense for maintenance, nor had it been necessary for them even to apply the profits arising from their residuary proportion which they received at an earlier age than the elder children ; thát at the time of -the testator’s mak- , ing his will, the negroes devised to the plaintiffs were of as much or more value than those given to the other children, and at the time of their coming of age, or marrying, were,, and will be, much more valuable than those received by the other children at their full age, or marriage.
    The answer concluded with admitting the amount of hireof thenegroesleft to the plaintiffs, up to the 25th day of December, 1803, to-be 3821. 8s. 5d. 1-2. as would appear by an account thereunto annexed.
    *The plaintiffs replied generally ; and commissions to take depositions were awarded, but none were taken on either side. The cause was heard on the bill, answer, replication, and copy of the will ^ whereupon the county court decreed that the defendant páy to the plaintiffs “the annual profits of the negroes respectively devised to them by the testator, amounting to 3821. 8s-5d. 1-2.” and costs.
    The superior court of chancery having affirmed this decree, the defendant again appealed.
    Wickham, for the appellant. The plaintiffs were not entitled to intermediate profits-on the slaves, possession of which was not to be delivered them until a future day. They might have produced no profits, or might have been an expense to the estate. If such had been the case, could the executor have charged the expense against the legatee? Would he not have been obliged to deliver the slaves free of charges? If so, shall the legatee be entitled to profits, when he is not responsible for loss? No case can be found of an allowance of intermediate profits on a specific legacy of property to be delivered in futuro.
    Call, for the appellees.
    This was a vested legacy to each of the plaintiffs ; and in all cases of vested legacies, the profits go to the legatee. The word “when” does not denote a condition precedent, but only marks the period when the legatee shall enjoy the benefit of the gift. In case of a devise of lands, it is now settled that the words “when” and “then” do not create a contingency.
    But, “in the case of a child, let a testator give a legacy how he will, either at 21, or marriage, or payable at 21 or marriage, if the child has no other provision, the court will give interest by way of maintenance.” 
    
    Mr. Wickham says there is no case of allowance of '^profits on a specific legacy. But, in this country, there is the same reason for allowing profits of slaves, as in England, interest on money.
    In England there was formerly a great controversy, whether profits were not to be allowed even upon contingent legacies. A distinction has been taken that, in such case, where there is a residuary clause, the profits shall go into the residuum. Here, there is a residuary clause ; and, if the profits of the slaves go that way, there is no provision for maintenance, the SOI. being intended for education only.
    The decree, indeed, is defective ; for interest ought to have been allowed on the sum confessed by the answer.
    Wickham, in reply. The question whether this was a contingent or a vested legacy, is unimportant. If it was vested, I contend that no interest is allowed on a vested legacy, payable when the legatee attains full age, or marries. It is “debitum in prsesenti, solven-dum in futuro.” I admit, where interest is necessary for the maintenance of a child, or there is nothing in the will showing a contrary intention, the court will allow it; but then, the necessity must be ariparent; as where the child has no other provision. Education must be considered as part of maintenance ; for, if we go to the root of words, education signifies bringing up. The testator’s having partly provided, shows his intention to provide no more. Besides, the residuary estate may have been sufficient, the amount of which is not ascertained ; it may be ten pounds, or it may be ten thousand.
    As to interest on the profits, this is never allowed, no more than interest upon interest, 
    
    
      
       3 Bro. Ch. Cas. 474.
    
    
      
       3 Atk. 102, Heath v. Perry; and 1 P. Wms. 783, Acherley v. Wheeler and Vernon.
    
    
      
       Crickett v. Dolby, 3 Ves. Jun. 13.
    
   *Thursday, October 3d.

JUDGE BROOKE

pronounced the opinion of the court,

“That there is no error in the decree of the court of chancery, as far as it affirms the decree of the county court giving" to the ap-pellees the profits of the slaves devised to them, from the death of the testator ; but that there is error in both decrees in this, that interest is not allowed the appellees on the amount of profits admitted to have been received by the appellant ; and also in this, that the said decrees are joint and not several.” Therefore, both decrees are to be reversed, with costs against the appellant, the appellees being the parties substantially prevailing; and, “the appellees not complaining of the error last assigned,” a decree is to be entered in their favour for the sum of 3821. 8s. 5d. 1-2. (which the appellant admits by his answer he had received as hire of the slaves,) “with legal interest thereon from the 25th day of December, 1803, the time of the receipt thereof, until the 15th day of March, 1804.”

Afterwards, Monday, December 2d, “the counsel for the appellees waiving his objection to the error in the decrees of the county court and superior court of chancery, in not allowing interest to the appellees on the profits of the slaves bequeathed them,” the decree of reversal was set aside, and the decree of the superior court of chancery affirmed.  