
    JOHN S. HOAGLAND, GUARDIAN, &c., v. THE EXECUTORS OF JOHN SCHENCK, DECEASED.
    In Case.
    Interest upon a specific legacy of money, is to be computed after and from the expiration of one year after the testator’s death, unless otherwise directed by the Will, although the fund liable therefor, may not have come to the executors’ hands within the first year after testator’s decease.
    This cause was submitted without argument, at the last term, upon the following State of the Case, and the briefs of P. I. Clark attorney of the plaintiff, and J. S. Green for the defendant.
    STATE OF THE CASE.
    This was an action of assumpsit, brought to recover what is alleged to be due on a legacy left under the Will of John Sehenck. The parties agree upon the following statement of facts. John Sehenck the testator died on the 22d day of August, 1823, having duly made and published his last Will and testament, bearing date the 12th August 1823, by which, among other things he orders and directs that “ out of the net proceeds of my real and personal estate, I give and bequeath unto my executors hereinafter named, the survivor and survivors of them, the sum of one thousand dollars, upon this especial trust and confidence, and to the intent and purpose following, that is to say, that my executors shall place the same out at interest on landed security, or such security as the Orphan’s Court may approve, and to remain at interest until my son Abraham shall return into this township, or until his eldest child shall attain the age of twenty-one years, which shall first happen. If he return before then, that my executors may in their discretion, pay to my son Abraham from time to time as they receive the same, any sum or sums of money not exceeding the annual interest of the said sum bequeathed to them as aforesaid, that may be reasonable and proper for his assistance and support; my intention being that he shall have the benefit thereof towards his comfortable support, but that the same shall be paid by my executors, as they shall be satisfied his occasions require, and be paid into his own hands only, for which his own voucher, or his actual receipt of the money only, shall be a discharge, and shall not be liable at all for his debts or engagements, or be called out of the hands of my said Executors, by any proceedings against him, to satisfy his creditors, and that the interest continue to be thus applied by my executors during his natural life; and after his decease, the balance of interest if any remaining unexpended, for his support as aforesaid, together with the principal sum, shall be equally divided between and paid to his children, that may be then living, and in case any of them should have died leaving issue, such issue to take the parent’s share; and in case my said son Abraham should die or should not return to this township until his eldest child arrived to the age of twenty-one years, then the principal and interest of the said legacy to be equally divided between and paid to the children of my said son Abraham, as they shall attain the age of twenty-one years, and I do likewise direct, authorize and empower, my executors hereinafter mentioned, the survivor or survivors of them as soon as shall be convenient after my decease, to make sale of all my real estate, either at public or private sale, as they shall think most expedient, for the highest and best price that can be obtained for the same, on such terms of payment as they shall think fit, the money not paid down to be secured by mortgage on the property, and to make, execute and deliver to the purchasers thereof, good and sufficient deeds of conveyance in fee-simple.” Abraham Schenck the legatee named in the Will, about the end of the year 1823, returned into the township of Am well, being the township named in said Will, and was sued, committed to jail and took the benefit of the insolvent laws, and shortly afterwards left the State of New Jersey, and died in Berks county, State of Pennsylvania, in the year 1828, leaving the following children, John H. Schenck, Ann, Henry and Ida Schenck, who are still living. The executors paid for him while confined in jail, and hip funeral expenses, the sum of
    The executors shortly after the death of the testator, advertised the real estate to be sold at private sale, but got no offer. In January 1824, they again advertised the property for sale at public vendue, but owing to a claim made by one of the heirs, the property could not bé sold. In 1825, the executors sold the homestead at public sale, for the highest price they could obtain, but below its value as they thought, and for the other part of the real estate, they could not get a bid. In 1826, they again offered seventy acres of woodland, in five acre lots, but could not obtain a bid. The testator had some time before his death, bought a farm and personal property of the assignees of his son Arthur, amounting to between six and seven thousand dollars, and had paid but little of the purchase money, and a suit" had been commenced in which the title was brought in question — which was not determined till 1830. Peter S. Schenck had also a claim, which gave rise to a suit which was not brought to a close till 1830, and then the executors made sale of the residue of the real estate, except what is devised to Arthur. In the month of February 1829, the executors made' their first settlement with the Orphans’ Court — and in May 1831 filed their second account and made provision for the legacy of one thousand dollars for the children of Abraham Schenck. John H. Schenck, the eldest child of Abraham Schenck the legatee, has attained his age of twenty-one years.
    It is agreed by and- between the parties to this suit, that if the Court should be of the opinion that the legacy to Abraham Schenck, carries interest from the 22d day of August 1834, being one year after the death of the testator, then judgment shall be entered in favor of the plaintiff for two hundred and fifty dollars with interest from the said 22d day of August 1824. But if the Court should be of the opinion, that the said legacy carries interest from the 25th day of May, 1831, the time when assets came into the hands of the executors from the sale of the real estate of the testator, then judgment shall be entered in favor of the plaintiff for two hundred and fifty dollars with interest from such time; and it is further agreed, that each party pays no costs to the other, and may turn this case into a special verdict, and bring a writ of error thereon.
    P. I. Clarh,for plaintiff.
    
    Upon the statement of facts before the Court in this cause, the question submitted is, Whether the interest on the legacy of one thousand dollars, given to the executors in trust for Abraham Schenck, and his children, is to be computed from one year after the death of the testator, for the benefit of the children of Abraham Schenck ?
    The legacy of one thousand dollars, is charged with interest for the benefit of the father (Abraham Schenck) during his life, and alter his decease, the interest remaining unpaid together with the principal is to be paid to his children as they come of age.
    The estate is ample.
    There is nothing in the will restricting the accruing of interest to the time when the executors could ascertain the net proceeds of the estate, but on the contrary it is payable instantly for the benefit of the father.
    Besides, the question of interest is not affected by the productiveness or otherwise of the fund out of which the legacy is to be paid. 7 Ves.jr. 89.
    The testator in contemplation of a part of the interest being expended by the father, directs “And after his decease, the balance of interest, if any remaining ” &e. to be given to the children.
    And again, supposing none of the interest to be expended by the father, “ then the principal and interest of said legacy, be equally divided and paid to the children ” as they shall come of age.
    These clauses clearly give the interest of this legacy, to the children. Rev. L. 51, sec. 7; Saxton’s Ch. Rep. 40; 7 Ves.jr. 89.
    
      J. S. Green, for defendant.
    
    There is but one question involved in this case, and that is from what time is the interest upon the one thousand dollars given to Abraham Schenck, named in the clause of the will, to be calculated.
    The executors insist, that this sum of one thousand dollars, vsus to be drawn from the net proceeds of the real, and personal estate.
    
      The executors have full power po sell. The property might be sold at public or private sale, and at the discretion of the executors. The real estate, could not be sold, or that part of the estate settled, so as to ascertain what were the costs, and claims, and expenses, till 25th May, 1831, and then the executors could appropriate one thousand dollars to this legacy. This was done.
    This is a question of intention. The testator intended to give the children of Abraham Schenck, the principal, while he intended the interest for the support, and maintenance of Abraham. Neither the principal nor the interest were intended for the support of the children. — They were to derive no benefit from the will during their minority. At twenty-one, each child was to receive his proportion of the principal, and balance of interest unexpended by Abraham. This, then, is a case of grand-children, and the rule, that interest shall be charged from one year after the death of testator does not apply. 2 John. C. R. 614, Lupton v. Lupton.
    
    The act of the legislature Rev. Laws, 51. Section 7, applies only where no time is limited. Here the time is limited. The one thousand dollars are to be placed out at interest — to be taken from the net proceeds of the estate — Lord Chancellor Eldon on page 96 of 7 Ves. jr. Gibson v. Bott—says. “When a testator gives interest of a fund to be created by a sale, as soon as conveniently can be, he means only the interest from the time the property can conveniently be sold.”
    Same rule stated in 5 Binn. 475; 3 Desaus. Cha. Rep. 387; 3 Munf. 10.
    Subject treated at large in 1 Roper cm Legacies, page 588.
   •The opinion of the Court, was delivered by

Dayton, J.

This an action of assumpsit brought to recover the amount due on a legacy, left under the will of John Schenck, deceased, and the facts are agreed upon by the parties (see state of the case.)

By this state of the case, the Court is relieved from the necessity of considering whether under the directions of the will, the legacy in question, would or would not carry interest from the death of the testator. The only question submitted, is whether interest shall be calculated from and after the 22d. of August 1824, being one year from the testator’s death, or from and after the 25th of May 1831, being the time when the second account of the executors was settled in the Orphans’ Court, and the net proceeds of the sale of the real estate ascertained.

The general rule is, that legacies become due, one year from and after the death of the testator, unless otherwise ordered in the will. And inasmuch as interest is allowed by law only by reason of the supposed delay in liquidating the principal, it follows, that legacies carry interest after one year from the death unless otherwise specially ordered. But this rule has application only where no specific directions are given in the will. In this case the leading object of the testator, evidently, was to make some provision for the support of his son Abraham, ¡dunsid he return. And that provision, was the annual interest to accrue on this legacy, which he directed his executors to pay over in whole or in part as might be proper and reasonable for his assistance and support. And as if to give additional clearness to his intent, he adds this clause. My intention being that he (Abraham) shall have the benefit thereof towards his comfortable maintenance and support.” And the testator further directs; that the interest continue to be thus applied by his executors during his (Abraham’s) natural life; and after his-decease, the balance of interest, if any remain unexpended for his support as aforesaid, together with the principal sum, be equally divided between and paid to his children. Connect these clauses with the additional fact that he directs that the interest of Abraham in the legacy in question, shall not be liable for his debts or engagements nor be called out of the hands of his executors, by any proceedings against him, to satisfy his creditors, and no doubt can remain as to the intent of the testator. The construction contended for by the defendant (which might and would have deprived his son Abraham had he lived, of all benefit from this legacy for seven or eight years) would do violence to that plain and clear intent.

But it is said that it is the children of Abraham who make this claim; and the case therefore, is a case of grand-children, in whose favor, the rule that interest be allowed after one year from the death, though the legacy be not due, does not apply. Neither would the rule apply if it were Abraham himself who was making the claim. It does not apply to adults — 2 Rop. on L. 199, 201; 1 Swanst. 553. Nor would it apply if he were an infant making the claim; because, it is a technical rule having no application, where specific directions are given in the will.

The construction contended for by the defendants, is a harsh one, (the estate being ample,) and is not required by the language of the will. The testator says. “Out of the net proceeds of my real aud personal estate I give” &e. the legacy in question; and in a subsequent part of the will, authorized his executors or the survivor, as soon as convenient after his decease to make sale of his real estate. Such general terms as, “ out of the net proceeds” or words equivalent thereto, are .of common occurrence in last wills, and without other matter to give them point and construction, can be regarded as little else than a kind of formula, to which no distinct effect or operation should be given. Where a testator, for instance, orders his debts and funeral expenses to be first paid, and then distributes the balance, or net proceeds of his estate in.legacies, it has never been held that such words imply that the legacies do not become due until all the debts be paid; and yet it is not possible to ascertain what will be the balance, or net proceeds, until that is done. Such a construction moreover, would lead to endless difficulties. Each case would be left to depend upon its own facts; and the time at which the net proceeds come to hand, and the question whether the executor had used due diligence in the making of sales, and payment of debts, would be of constant occurrence. The authorities cited by the defendant’s counsel, do not sustain the construction for which he contends, but the contrary. It is true that in the case of Gibson v. Bott, 7 Ves. 89, the Chancellor says, “ When a testator gives interest of a fund that is to be created by a sale as soon, as conveniently can be, he means only the interest from the time the property can be conveniently sold.” But this remark must be applied to the question then under consideration. The testator in that case had given the residue of his estate to his executors upon trust that they should as soon as convenient after his decease, sell and dispose thereof, and invest the proceeds at interest and pay the clear yearly interest to his two daughters. The question was whether under the will they were entitled to an allowance from the death or from the time of the sale which was within the year after the death: And the allowance was from the time of the sale. That the Chancellor did not intend to apply the observation to a case like the present, is evident from another part of his opinion, in which he says. “ If it (a leasehold estate) is to be converted with all convenient speed, these words never require it to be sold the very next day. Where those words oeour as to legacies, interest is never given until the end of the year. The Court is obliged to take a general rule; as it is impossible to make the enquiry in every particular case. Suppose the testator directed his executors to convert the property with all convenient speed, to pay certain legacies — the legatees could make no complaint until the end of the year.”

This is the language of Lord Eldon in the case cited; and so far from favoring a construction which would extend the time from which the legacy in this case is to draw interest, to an indifferent period dependent upon the sale and conversion of the real estate, would rather justify us in allowing interest after one year from the death.

Rut we are bound to allow interest in this case after a year, by analogy. We are seeking after the intent of the testator where he has given a legacy from the net proceeds of his real and personal estate, and directed the former to be sold as soon as convenient after his decease: And the question is, whether

we are not to suppose that the testator must have intended one year as a convenient time. Where nothing is said as to the time of payment, the law implies that the testator intended first to allow the executor a convenient time to sell and settle the estate, and then makes the legacy become due: And it considers one year from the death, a convenient lime. In the present case, this is not left to implication, but the testator has said expressly that his executors shall sell as soon as convenient; and we are not to suppose that he intended by these words when expressly used, any thing different from what we would have supposed him to intend by the same words, when used by implication of law.

The legatees are clearly entitled to the principal of the legacy, together with interest thereon, after one year from the testator’s death.

Hornblower, C. J. and Ford, J. and White, J. concurred.  