
    Alexander Davidson, Surviving Executor of George Neely, v. John Ruff, Administrator, and others.
    Testator directed Ms estate to be sold and the interest of the fund arising th'enee to be paid to his son S. annually, and the principal to be equally divided amongst the lawful issue of S. as they came of age or married; “ and in default of such heirs to go to his next of kin to be equally divided amongst them at the death of S.; S. died without issue. — Held, 1. That the limitation over to the next of kin, was not too remote: 2. That S. was entitled to the interest on the whole sum annually during his life; and his administrator to the interest which accrued in the year he died, up to the time of his death. [*141]
    George Neely died, leaving of force his last will and testament, in which, after giving his whole estate to his wife for life, he *devises ,-*.. . - and bequeaths as follows : “It is my will and desire that at the L death of my said wife, that all the above-named property, (or what remains of the same) shall be sold, and the interest arising from the amount of the said sale shall be annually, or as soon as it can be collected, paid to my said son Samuel, and the principal or amount of said sale to remain in the hands or care of my executors hereinafter named, to be equally divided amongst the lawful issue of my aforesaid son Samuel, (if any,) as they come to the age of twenty-one or marry, and in default of such heirs, to go to his next of kin, to be eqally divided amongst them at the expiration or death of my aforesaid son, Samuel Neely.”
    On the death of the widow, the executors sold the property according to the directions of the will, and annually, up to January, 1833, paid to Samuel Neely the interest on the amount of the sale. Samuel Neely died in September, 1833, unmarried, without issue and intestate, and the defendant, Ruff, administered on his estate.
    This was a bill of interpleader, filed by the plaintiff, as surviving executor of George Neely, stating that soon after the death of Samuel, he was notified by Mary Neely and Margaret Brown, that they claimed the funds in his hands as next of kin to Samuel Neely, the one as his paternal, and the other, as his maternal aunt; and a like notice from the defendant, Ruff, claiming the whole as administrator. . And the bill prays, that these claimants be brought before the Court, and their rights adjudicated.
    Chancellor Johnston. The defendant, Ruff, contends—
    1. That he is entitled to the whole capital and interest left at his intestate’s death. If he fail here, he insists—
    2. That he is entitled to the interest of the entire year in which Samuel Neely died. Failing in this, he claims—
    3. The interest of that year up to the time Samuel Neely died.
    His claim to the whole capital and interest, is founded on an assumption that the limitation to the next of kin to Samuel Neely is too remote. Assuming this, he insists that the bequest reverted to the testator.
    *1421 *The Court of Appeals has, to be sure, decided that there may be a reverter of personalty. (Geiger v. Brown.) But if this bequest did revert, it became distributable as intestate property. The right to distribution vested in the testator’s widow and son, and this defendant, as the son’s administrator, could receive only two-thirds of it To recover the widow’s third, administration to her must be taken out.
    But I am satisfied that the limitation is good. It is not necessary to refer to authorities for the doctrine that a limitation is valid if it is to take effect at the termination of existing lives or a fixed period beyond them, which it is unimportant to mention here. Although the limitation is upon failure of issue, to whom there is a prior bequest; yet, if there be expressions showing that the testator did not mean an indefinite failure of issue, but a failure within the period I have mentioned, or if that be necessarily inferable from the period fixed for the limitation to take effect, the limitation is not too remote.
    Here the previous bequest is to the lawful issue of Samuel Neely ; in default of such issue, then to his next of kin, to be divided among them at his death.
    The limitation is to be carried into execution at Samuel Neely’s death, which shows that the testator contemplated that the failure of issue, upon which it was to depend, should exist at that time ; that is, he intended to limit not on an indefinite failure of issue, but upon a failure at Samuel Neely’s death.
    I have proceeded on the supposition that the limitation over does not in terms vest the legacy in the next of kin upon Samuel’s death, but. vests it in them indefinitely and merely fixes that as the time for executing the trust by dividing it among them. I am convinced that pointing that period out as the time for delivering the legacy to the next of kin, is sufficient evidence that the testator, by “ failure of issue,” meant a failure at that time.
    But by barely including the words “ to be equally divided among them,” in a parenthesis, the limitation will be turned into a legacy, the right to which vested at Samuel’s death.
    , With respect to the interest, I feel little difficulty. The testator could not intend that the capital should be apportioned among the issue of Samuel as they should come of age, if that should happen during Samuel’s life. The direction is that it be apportioned equally among them. Until his death, it could not be ascertained how many there would be of them ; nor, of course, what the equal *share of each should be. As none r#, of the capital therefore was to become divisible till Samuel’s death, L and as the executors were directed to pay him the interest annually, it follows that he was entitled to the interest on the whole sum, annually, during his whole life That is, that all the interest was given to him until the capital should go over according to the terms of the will. But he was paid the interest up to the beginning of the year in which he died. Whether his administrator is entitled to the whole interest of that year, or the interest up to his death merely, is concluded in my opinion by Fronty v. Wagner, in which it was held there should be an apportionment.
    The plaintiff had good cause for filing his bill; and is entitled to his costs and reasonable expenses of suit out of the fund.
    It is decreed that the defendant, Buff, as administrator of Samuel Neely, is entitled to the interest of the fund which accrued in the year of his intestate’s death, up to the time of said death, and that he may have a reference to ascertain the same.
    That the defendants, Mary Neely and Margaret Brown, as next of Mn to Samuel Neely, in equal degree are entitled, share and-share alike, to the residue of the fund in controversy, after deducting therefrom the costs and reasonable expenses of the plaintiff in this suit; and they may have a reference to ascertain the balance coming to them respectively. The plaintiff’s costs and expenses to be paid out of this fund..
    That the other parties pay their own costs. Buff’s to be allowed him out of his intestate’s estate, if it extend so far.
    The defendant, Buff, now moved to reverse this decree, on the grounds:
    1. Because the limitation over to the next of Mn is too remote, and the estate vested absolutely in Samuel Neely. Or,
    2. The limitation being too remote, the estate reverted to the right heirs of George Neely, of whom the defendants’ intestate was one, and entitled to two-thirds thereof, and the Chancellor should have decreed accordingly. Failing on these grounds, he will insist — •
    3. That the Chancellor should have decreed to him the interest for the • whole year in which his intestate died.
    
      Summer, for the appellant,
    in support of these grounds, cited Butter-field v. Butterfield, 1 Ves. sen. 153-4; Fearne, 461-4-5; *Earl p.,., ,, of Chatham’s' case, 2 Bro. Ch. Bep. 33, 121: Bobertson v. Fitz- L herbert, Fearne, 480-1; 1 Cond. Eng. Ch. Bep. 541; 5 lb. 42; Bell v. Pritchard, 1 Buss. Ch. Bep. 213 ; Forth v. Chapman, 1 P. W. 693 ; Adams v. Chaplin, 1 Hill, Ch. 265.
    
      Fair & J. J. Galdwell, contra,
    cited Fearne on Ex. Dev. Ch. 3, § 9, 12, § 11, 45-6-8. Cordes v. Ardrian, 1 Hill Ch. 154.
   Harter, J.

We concur entirely with the Chancellor on both the points involved in the case. Fearne, in his treatise on contingent remainders and executory devises, 471, says what has been so often repeated, that “with respect to executory devises of terms of years, or other personal estates, the Court of Chancery has very much inclined to lay hold of any word in the will to tie up the generality of the expression of dying without issue, and confine it to dying without issue living at the time of the person’s decease. ”

Such is the case of Forth v. Chapman, and others, where property is given to one and his issue, and limited over in the event of the legatee’s dying without leaving issue. But surely the words are stronger in the present case, where the direction is explicit that the property shall be divided, in default of issue, at the death of the legatee for life. They are stronger than in the case of Nichols v. Hooper, 1 P. W. 198, quoted by Fearne, at the page before referred to, where the bequest was of £100, if the legatee should die without issue, to be paid within six months after the death; or in Pinbury v. Elkin, 1 P. W. 563, where the bequest was, if the wife should die without issue by the testator, then after her decease to the testator’s brother. The words “then after,” were taken to mean immediately after, and consequently to restrain the dying without issue to the time of the death. The case also might come within the reason of the decision in Keily v. Fowler, Fearne, 482, there being a personal trust to the executors to retain the fund and pay over the interest during the son’s life, and then to divide the fund.

Weagree also with the Chancellor in respect to the apportionment of the interest; and such, I believe, was the common rule, independently of the decision referred to by the Chancellor. The cases in which it was said that there should be no apportionment between the tenant for life and the remainder-man, were those of rent, payable on certain days, Jenner v. Morgan, 1 P. W. 392, which *was remedied by statute 11 Geo. 2, -* C. 19 ; that of money in the public funds, on which the dividends are payable on certain days, Rashleigh v. Masters, 3 Br. Ch. Ca. 99; and that of annuities, Pearly v. Smith, 3 Atk. 260. But, as is said in the case last referred to, interest is regarded as accruing from day to day, and therefore apportioned. Edwards v. Countess of Warwick; Wilson v. Harman, 2 Ves. 67; 2 P. W. 176. And this was done where the interest was reserved on a bond by half-yearly payments. So, where under a marriage settlement, a certain yearly sum was to be paid on certain days half yearly, for maintenance, this was apportioned, maintenance being favored. In the case before us, the interest is directed to be paid annually, or as soon as collected, and plainly for the son’s maintenance.

Decree affirmed.

Johnston, J., and O’Neaed, J., concurred.  