
    Adams’s Adm’r v. Adams’s Adm’r.
    December, 1839,
    Richmond.
    (Absent Pakkbr and Cabell, J.)
    
    Legacies — Annuities—Interest on Arrears — Liability of Administrator d. b. n. — Case at Bar. — A testator directs his executors to set apart so much of his property, -not .specially bequeathed, as they may think sufficient to produce a clear annual income, by rent or interest, of 2000 dollars, which amount he desires them to pay in manner following, viz. the sum of 500 dollars annually to his sisters and niece, to be paid to each of them for and during her life. The executors fail to set apart property as directed, and die largely indebted to the estate, and wholly insolvent. In -a suit by one of the annuitants against the administrator de bonis non, she claims not only the principal which the executors failed to pay her, but interest thereon. Held, to decree for such interest against the administrator de bonis non, and thereby diminish the estate of the residuary devisees and legatees,is erroneous.
    The will of Richard Adams contained the following ’ clause : “It is my wish and desire that my executors, hereinafter to be appointed, will set apart as much of my property, not herein specially bequeathed, as they may think sufficient to produce a clear annual income, by rent or interest, of 2000 dollars, which amount I wish then to pay, and I hereby give, in manner following: the sum of 500' dollars annually to my sisters Tabitha, Klizabeth Griffin and Ann Carrington, and to my niece Sally Bland Adams, to be paid to each of them for and during her life.” The will bore date the 3d of August 1815, and was admitted to record the 13th of January 181V. John Adams and Samuel G. Adams qualified as executors. The will directed that no security should he required of them, other than their own joint bond; and none other was given.
    After the death of Samuel G. Adams, to wit, on the 24th of July 1824, a bill was filed in the name of Sally Bland Adams, a person of unsound mind, by Edmund Christian her next friend and committee, setting forth, that she had never received her annuity of 500 dollars, or any part thereof, and praying that the arrearages thereof due the complainant may be paid to her, and a fund set apart for the payment thereof in future, out of the estate, real or personal, of the said testator. The defendants to this bill were John Adams the surviving executor of Richard Adams, and Tabitha Adams, Elizabeth Griffin Adams and Ann Carring-ton, who were jointly interested with the complainant in the fund to be provided for the annuities.
    Pending the cause, all the parties died. It was revived in the name of Richard Adams as administrator of Sally Bland Adams, against William D. Wren as Ser-jeant of Richmond and administrator of John Adams, George M. Carrington administrator de bonis non with the will annexed of Richard Adams, the same George M. Carrington as administrator of Ann Carrington and Tabitha Adams, and Richard A. Carrington as executor of Elizabeth G. Adams.
    *George M. Carrington answered, stating, that he does not know whether any fund, real or personal, was ever set apart by the executors of Richard Adams, or the survivor of them, for the payment of the annuities ; that payments have been made by the executors on account of the annuities, the amount of which payments will appear by their accounts ; and that he has not the funds out of which the arrearages of the said annuities can be paid.
    An amended bill was filed in the name of Edmund Christian and of Richard Adams the administrator of Sally B. Adams, stating, that owing to the nature of the dispute in which the most valuable part of the estate of Richard Adams has been involved, it would have been injudicious to raise money by a sale thereof, but alleging that by a recent compromise with the parties who contested the title, there is now an abundant source from which the annuity and all the interest accruing thereon may be readily satisfied. Adverting to the fact that interest was not in terms specially claimed in the original bill, the complainants say they are advised that it is incidently involved in the claim of the principal, and that it is justly due ; and they pray that it may be decreed, and paid over to the complainant Richard Adams the administrator of Sally B. Adams.
    George M. and Richard A. Carrington answered, correcting the statement in the first answer, that payments had been made on account of the annuity to Sally B. Adams, and admitting that no payments had ever been made by the executors of Richard Adams, or either of them, on that account. On the subject of interest, the answer proceeds as follows : “ These respondents are advised that the recovery of interest on an annuity in arrear is nota matter of course in all cases, and the plaintiff, or his counsel who drew the original bill, did not consider the said Sally B. Adams entitled to interest *on her annuity in arrear, and therefore, it is presumed, it was not claimed in that bill. At the death of Richard Adams, it is admitted he was possessed of real property, the title to which was clear, and which was not specifically devised by his will, sufficient to have produced the annuity of 2000 dollars bequeathed to the testator’s niece Sally B. Adams and to the testator’s sisters Tabitha Adams, Elizabeth G. Adams and Ann Carrington ; but these annuitants, who were all sui juris except Sally B. Adams, and the complainant Edmund Christian who was her committee, forbore, the said Tabitha, Elizabeth G. and Ann during their lives, and the committee of the said Sally B. until sometime in the year 1824, to exhibit her bill for her annuity. The executors of Richard Adams (very honestly, no doubt, but most imprudently) so proceeded in managing their testator’s estate, that they became indebted thereto in the sum of 158000 dollars, which they left unpaid at their deaths, and which must forever remain unpaid, as they both died utterly insolvent: and now the complainant Edmund t hristian as late committee of the said Sally B. Adams, and Richard Adams her administrator, are demanding the principal of her said annuity, with interest thereon, although the complainant Christian was the agent and clerk of the executors of Richard Adams in 1818, 1819 and 1820, and at the same time the committee of the said Sally B. Adams, and knew perfectly well how the executors were proceeding. If the right of the said Sally B. Adams and the other annuitants, to have the sums then due to them paid, and property set apart to secure the annuity of 2000 dollars annually thereafter, had been asserted in 1818 or 1819, it might have been done, and without loss to the other legatees tinder Richard Adams’s will: but the executors were not required to pay the arrearages of the annuity, nor to set apart property sufficient to raise annually the amount thereof, which might have been done without loss to the general'^legatees, most of whom were infants ; and after the executors had wasted the enormous amount aforesaid, the claim to the arrearages of Sally B. Adams’s annuity was made in 1824, when there was no money in the hands of, Richard Adams’s executor to pay the arrearages of the annuity, nor any property which could have been sold to raise the amount; and now in the year 1833, for the first time, a claim to interest thereon is asserted by her administrator. These respondents are advised that under the circumstances of this case, if the balance of the principal of the annuity of 2000 dollars can be recovered by the representatives of the deceased annuitants, they should not be allowed interest thereon.
    
      The counsel for the plaintiffs agreed that the indebtedness of the executors of Richard Adams, their insolvency, and the fact that Christian was the committee of Sally B. Adams and the clerk of the executors, might be regarded as fully proved.
    And it was admitted by*the defendant George M. Carrington, the administrator de bonis non with the will annexed of Richard Adams, that by a recent compromise entered into between the real and personal representatives of the said Richards Adams deceased, the real and personal representatives of William Byrd . deceased, and the corporation of Richmond, there is now real property belonging to the estate of the said Richard Adams deceased, which may be set apart for that purpose, sufficient to raise the balance of principal and interest due upon the annuities, without prejudice to the claims of creditors of Richard Adams deceased, or the rights of any of the legatees or devisees under the will of the said Richard Adams, except the residuary legatees and devisees under the same.
    On the 17th of February 1834, the circuit court declared its opinion that the personal representatives of the annuitants are entitled to interest on the annuities and arrears thereof, from the time the same became *due and payable; the first payment commencing at the expiration of twelve months from the death of the said Richard Adams.
    From this decree, an appeal was allowed.
    Taylor for the appellant.
    Robertson for the appellees.
    
      
      See monographic note on “Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.
    
   ST ANARD, J.

The only question that the counsel for the appellant has propounded for the consideration and decision of this court, is whether the decree appealed from, so far as it establishes the title of the appellee to interest on the arrearages of the annuity antecedent to the time of the decree, be correct. The adequacy of the estate to pay the principal of those arrearages, or its liability therefor, is not here questioned. To the decision of this question so propounded, I deem it unnecessary to pursue the elaborate and able investigation made in the argument, of the cases adjudicating the claim to interest on the arrears of annuities of various classes, or to ascertain the nice shades of distinction which have determined the allowance or dis-allowance of interest on the arrears ; being of opinion that no adjudication, even that most favourable to the claim to interest, would justify its allowance in this case.

The annuity here was payable out of the rents of real, or interest or profits of personal estate, that the testator directed should be set apart by the executors to raise, in rents or interest, a sum adequate to pay it. The case ascertains that the rents and profits of the whole estate, during the greater part of the time, were received and wasted by the executors, who wasted also a large amount of the principal of the real and personal estate; that such rents and interest have not come to the hands of the defendant, on whom the claim is now made for the principal and interest of the annuity; and that the claim to interest, if sustained, must*be satisfied by charging it on the rents of real and interest of personal estate, accruing long since the death of the annuitant.

That such claim cannot be sustained, is made manifest by adverting to the position it would occupy, on the hypothesis that the executors had, as the will directed, set apart the rents of real estate adequate to raise the annuity, and disposed of the residue of the estate by partition thereof among the devi-sees. Had this been done, it would have been the duty of the executors to receive the rents and pay them over to the annuitants. If the executors were in default in paying them over, they might have been responsible for interest; but that responsibility could in no wise have been made a charge on the principal of the estate yielding the rent,— much less on the profits of the estate in the hands of the devisees, and still less on the principal of that estate. On this hypothesis, the devisees, and the rents and profits or principal of the estatedevised to them, would not have been liable to this claim, though they received the profits of the residue of the estate. Can that liability exist, when such rents have not been received by them, but have been wasted by irresponsible executors?

BROOKE, J.

The general rule is that annuities do not bear interest, but there are many exceptions, which, however, it is not necessary to state, as I think the case before us cannot come within any of them. It would be to go beyond the terms of the will, to charge the estate with more than the sum specified to be raised by the executors, namely, 500 dollars annually to each of the annuitants. The claim in the bill being against the estate of Richard Adams, I think the decree ought to be reversed as to the interest.

TUCKER, P.

If this were a demand against the executors of Richard Adams deceased, there could be no ^question about their liability to interest on the annuities. The estate was abundant, and the requisite fund should have been at once set apart. The annuities should have been paid at the end of each year, and on failure of payment, the executors should have been charged with interest — payable, however, out of their own pockets, and not out of the estate; for that could not be charged with it. For where an executor who is fullhandea fails to pay creditors, so that interest accumulates, the payment of such interest is a devastavit, audit can therefore never forma proper charge against the estate. Toller on Executors, p. 426; 2 Levinz 40. The case of interest paid to legatees, where the situation of the estate was not the cause of the delay of payment, stands upon the like reason and must be governed by a like rule.

Here, however, the executors are insolvent, and the attempt is to charge the interest upon the residuary estate. In deciding this question, it is not necessary to settle a principle about which lord Eldon seems to have had great difficulty in Ex parte Chadwin, 3 Swanst. 380, and which he seems to have considered yet open ; 2 Williams on Ex’ors, 838. In that case there was a question between general and residuary legatees, whether, in the case of the executor’s waste of the estate, and his hopeless insolvency, the general legacies should abate. The general legatees had received interest from the executor, and this dealing with him, his lordship held, was sufficient to charge them with their proportion of the loss. Dyose v. Dyose, 1 P. Wms. 306 (questioned in 1 Brown’s C. R. 472, and 2 Cox’s C. R. 184,) was cited. Perhaps the true rule in such cases is, that as no one can have a right to expect another to attend to his interest, the residuary legatee cannot complain of the general legatee’s delay, since all that is incumbent on him is to see that enough is left in the executor’s hands to pay himself, without looking beyond to the interest of the residuary. The residuaries here, however, are not contesting the payment of the annuities ^themselves, but only of the interest; and this question, I think, may be decided upon the-case itself, without reference to authority.

The testator, by his will, carved out of the residuum of his estate a limited capital, sufficient to produce a certain and limited sum for a certain and limited time. This court has no power to enlarge the capital, the sum to be raised, or the time. Now, as the sum to be raised annually was only 500 dollars for each, and the time for which it was to be raised was limited to the lives of the annuitants, no more than that sum, for as many years as she should live, can be raised for either annuitant. But that sum will only pay the principal, and not a cent of interest. The interest, therefore, cannot be allowed ; for in allowing it, we should exceed the limits which the testator has imposed.

This opinion may perhaps be more clearly illustrated, by supposing that all the annuitants were now in full life, and all were claiming the principal and interest of their annuities since the year 1818. To give them this, the court would find it necessary to set apart a much larger capital than would be sufficient to produce 2000 dollars per annum for each year since the death of the testator. There must be a farther capital set apart to raise an average of 1440 dollars per annum for the twenty years that have elapsed, that being the average interest each year for the whole time. This would be very greatly to extend the limits which the testator had set to this charge upon the residuum. It could not therefore be countenanced, and probably would not be insisted on. But the plaintiff’s demand is the same in principle, although inferior in amount. It ought therefore to be rejected, and the decree which allowed it should be reversed.

Decree reversed, for so much as allows interest on the annuity, and for the residue thereof affirmed.  