
    
      Sarah Maria Drayton vs. Thomas S. Grimke et al.
    
    Testator bequeathed slaves to his son W. H. for life, and, c< after his death, to such son as - he shall leave living at his death/5 and should he leave no son, then to testator’s two grandsons, T. and J., “ on their arrival at the age of twenty-one years, and assuming the testator’s name at' that Period, their executors,” &e.: W. H. died without issue, T. and J. being, at the time of his death, under twenty-one years of age— Held that the legacy to T. and J. was contingent, and that they were not entitled to the profits accruing before compliance with the conditions.
    
      Before Johnston, Ch., at Charleston, January, 1831.
    Thomas Drayton, the defendant’s testator, among other things bequeathed as follows : .
    “ I .give and bequeath my driver, Dick, and his family, to wit, his wife and children, also my carpenters, Robert, Joe' and Jim, and my house servants, George and Daniel, with the future issue of the females from this date, to my son William Henry Drayton, during his "'natural life, and after his death to such son lawfully begotten of his body,as he shall leave living at his death, his executors, administrators .and assigns: — But should my said son Wm. Henry leave no such son, but .should leave one or more daughters ■ of his body lawfully begotten, or if he should leave such son, but he should die before he attained the age' of twenty-one years, then I give and bequeath one-third part of the said slaves to and between such daughter and daughters, her or their executors, administrators and assigns, if more than one as tenants in common, and the residue of the said slaves I give and bequeath in the folio vying manner, to wit: one moiety thereof I give and bequeath to my grandson Thomas Grimke, on his arrival at the age'of twenty-one years, and assuming the name of Drayton, as his surname, at that period, his executors, administrators and assigns; .and the other moiety I give and bequeath to my grandson John Grimke, on his arrival at the age of twenty-one years, arid assuming the name of Drayton, as his surname, his executors, administrators and assigns.”
    
      William Henry Drayton, the testator’s son, survived the testator, and died unmarried and-without issue. The testator’s grandsons, Thomas and John Grimke, survived him and were - still under age.' Under the above clause in their grandfather’s will several questions were made, viz: whether the minors took any, «and if .any, what estate in the legacy contained in this clatise of the will ? When did th.e legacy become vested in them, respectively?' And whether- the minors would-he entitled, after' a division, to. the profits until they came of age, or whether these profits should sink into the residuary estate?' The Chancellor, without noticing -John, 'decided that Thomas Grimke was not entitled to. the possession of-his part of the legacy until he reached twenty-one and changed his name;„ and that the administrator, with .the will annexed, should retain the profits of the legacy, and use them to the best advantage until the contingencies' happened that would take them out of his hands:, .
    On the part of John Grimke- an .appeal was lateen/ on the ground that the Chancellor should have decreed equally on his • rights, they being . the same as those of his brother. On the part hoth of Thomas and John Grimke an appeal was also taken, on the ground that they were the substitutes of Wm. H. " Drayton that he was entitled immediately on testátor’s death to all these slaves, or at all events to such of them as were not productive property, within the meaning of '-the decree in this cause, pronounced by the Appeal Court at'- 182 in
    Charleston, that they are, therefore, entitled, to them immediately . in possession on the death of W. H. Drayton. , They also appealed, on the ground, that if they were not entitled to .the possession of all the slaves, or of a part only, until they actually attained the age of twenty-one, and' complied with the' condition’of taking the name of Drayton;, yet on so doing they were entitled to all the intervening profits from'the death of W. H. Drayton. ' , '
    King, fox appellant.
    
      Holmes, Grimke, Petigru, contra.
   The opinion of the Court was delivered by

Harper, J.

There can be no doubt but that a legacy to Thomas and John Grimke, upon their arriving at the age of twenty-one years and assuming the name of Drayton, is contingent and does not vest till the conditions be complied with, and that, in general, the legatee is not entitled to interest on such a legacy till it becomes vested. A difference is supposed to be made in this case, from the circumstance of the property’s having been given, in the first instance, to the testator’s son William Henry Drayton, in whom it vested, and limited to Thomas and John Grimke, in the event of his dying without children. We think the case must be governed by those of Wyndham vs. Wyndham, 3 Bro. C. C. 58, and Shawe vs. Cunliffe, 4 Bro. C. C. 144; in the latter of which the rule is thus laid down by Lord Commissioner Eyre, if there be a fund, whether residuary of particular, given to A. for life, and afterwards upon a contingency, which does not take effect upon the death of the tenant for life, the intermediate interest is an interest undisposed of, and, therefore, falls into the residue.” The circumstances in the case of Wyndham vs. Wyndham, were, that a fund was given to trustees, in trust to pay the interest to the testator’s wife for life, then to his niece for life, and, at her death, he gave the fund to the younger children of Helgar Wadham Wyndham, if he should have any, and if not to Wadham Wyndham. The interest was paid to the wife and niece during their lives — at the death of the niece, H. W. Wynd-ham was living, but had no children, and afterwards died not having had any. The question was respecting the interest which had accrued in the life-time of H. W. Wyndham, after the death of the niece. Lord Thurlow “ thought it surprising that there was no case in which this question had occurred ; but said, where interest till an event arrived was not disposed of, it must fall into the residue.’’ The case of Shawe and Cunliffe was similar in circumstances. The authority of Wyndham vs. Wyndham, is said to have been approved in Descrambes vs. Tomkins, 1 Cox, 133.

It was further contended, that the testator had put himself in loco parentis with respect to these legatees, and that they may be entitled to the interest as maintenance : under the rule, that in case of a legacy by a parent to a child, interest will be allowed as maintenance, though the legacy be not yet payable, or even not yet vested. There is no ground whatever for this claim. The doctrine is founded upon the natural obligation of a parent to provide for his children, and a presumed intention that they should be maintained. In Harvey vs. Harvey, 2 P. Wins. 21, which was the case of legacy vested, though not yet payable, the Master of the Rolls says, “ it would be extremely hard that the children should starve when entitled to so considerable legacies.” In Incledon vs. Northcote, 3 Atk. 438, interest was given to children for maintenance, though the legacies were contingent, being given only to such children as should attain twenty-one, and Lord Hardwicke said it had often been done. But the cases respecting a person putting himself in loco parentis stand on a different footing. They are founded on an intention, inferred from the whole of the provisions of the will, that the legatee shall have the interest, and I am not aware of any case of this sort, in which interest has been given on a legacy not yet vested. In Beckford vs. Tobin, 1 Ves. Sen. 310, the bequest was to a natural child, with an express direction to apply the interest to education and maintenance, and the question was whether the legatee should have the interest from the death of the testator, or from the end of the year. Lord Hardwicke held that the direction for maintenance meant maintenance throughout, and gave interest from the death of the testator.

In Lowndes vs. Lowndes, 15 Ves. 301, which was a direct vested legacy, in trust for natural children, they were held not entitled to interest from the testator’s death, there being no such intention to be collected from the will. Hill vs. Hill, 3 Ves. and B. 183, was a bequest to apply the interest to the maintenance, education and advancement of natural children, and they were held entitled to interest from the testator’s death. In Acherly vs. Vernon, 1 P. Wins. 783, the legacy was vested though not yet payable. As the fund was separated from the residue, and the interest would not pass under the residuary bequest, the Chancellor decided, upon the intention, that no one but the legatee of the fund could take the interest. It' seems clear that grand-children are in this respect considered as strangers, and that if a contingent legacy be given to them, with a limitation over if the contingency does not happen, they cannot take the interest till the contingency happens and the legacy vests. Haughton vs. Harrison, 2 Atk. 329; Butler vs. Freeman, 3 Atk. 58 ; Lomax vs. Lomax, 11 Ves. 48. There are other cases to the same effect.

In the present case the legatees are not -children for whom the testator was bound to provide : the application is not made on the ground that they need the interest for maintenance, and privately we know they do not. The testator could not, of course, have intended it for maintenance; he gave the whole to another, and only limited the property to these legatees upon an event which he must have hoped would never happen. The Chancellor’s decree is affirmed and the rhotion dismissed. ■

Johnsow and ON ball, JJ., concurred.

Appeal dismissed.  