
    Ingraham and wife v. Postell’s Executors.
    1825.
    
      Charleston.
    
    Testator or-his ex* ecutors to sell terms and Conditions as to them should seem geous, and to ceeds in such shouM^eenf most safe and andtoCpay’ over to his daughter for life one half mdividendi arising on said stocjc "invest" ed as above the^ividends shall become )lu6« The other half to Andthen said “The^ro-dends °on 'one whole prop erty to he * daughter'and tole added'to theprinci-executorssold the estate and for a part took bonds on long credit. Held, that the daughter was entitled to one half of the proceeds of the whole' estate, whether arising from the interest arising on the bonds or/rom dividend's of stock purchased.
    
      William Postell, late of Charleston, deceased, made t his will, wherein, inter alia, he ordered his executors to ^ his estate, real and personal, in January next after his death, on such terms and conditions as to his . . . , , . , , , , said.executors should seem most advantageous, and to jnvest the proceeds of the sales in such stocks ás they should deem most safe and productive. Then followed the clause on which the only question in this case arose. ^ ®*or anc^ during the natural life of my daughter Mrs Joanna Ingraham (the testator’s only child) my executors W^1 pay over to her, for her own use, behoof and benefit, and that of her family, the one half of the pro- . . ' . 1 ceeds or dividends arising on the said stock, invested as above directed, at such times as such dividends on said stock shall be declared due and 'payable. Item, the , i j J other half of the proceeds or. dividends of said stock is to remain,, and my executors are to receive said half, and with it purchase stock, which will thus form an accumu-A " * latirig fund : But I wish my daughter Joanna also to rece‘ve the half of the dividends of this accumulating fund; the other portion, being the interest or dividends of this accumulating fund,to be added to the principal, so that my whole property, after providing for the legacies, &c. will be first divided into two equal parts, the proceeds °r dividends on one half to be paid to my daughter, the P10cee<^s 01 dividends on the other half to be- added to the principal, &c.”
    The executors, in pursuance of the will, sold the whole estate in January next after the death of the testator; and for the greater part of the purchase money bonds were taken, payable by instalments as usual, and at a very long credit. Mrs Ingraham conceived herself entitled, not only to the dividends of the stock actually invested, but also to the interest on the bonds given for the purchase money, as above stated; but the executors, by advice of counsel, refused to pay her any part of that interest, and contended that, by the words of the will, she could only claim the dividends of stock when the funds were so invested, but not before, and those only as they were received; and this was the question in the case, the executors contending that they had a discretion when to invest in stock.
    Nov. 1824.
    James, Chancellor.
    From this will may be collected, first, that the testator wished to restrict the property as much as possible to the separate use of the wife; secondly, that he wished to retain his property in his own family as long as he possibly could. ' He twice repeats that his daughter was to have only a life estate for the sole benefit of herself and family, and after her death her part is limited over to the grand children. It is impossible to read the will without seeing that the grand children are the peculiar objects of the testator’s bounty. With this intention always in view and to make it still more effectual, he directs that, “ when the proceeds of the sales are received, and as they are received, they are not to be paid away to his daughter, but to be secured still better.” That is, in fact, they are to be secured and invested in stock for the benefit of a separate estate which is limited over. In this the testator speaks plainly. The other half was to be invested in a similar manner, but with still greater restrictions. This shews with what anxious care he wished to guard every part of his property. Moreover, in reviewing the contest, he constantly speaks of his “ whole estate, as at first funded,” and of his “originally funded property;” which plainly indicates that he intended his executors were first to invest the proceeds of his estate in stock, which they are bound to do as fast as the interest accrues after the first year, from the sale of the estate. Costs to be paid by the complainants. '■
    From this decree the complainants appealed.
    
      Hugh S. Legare, for the appellant.
    The obvious and fair construction of the words of the will was, that Mrs Ingraham, should be allowed interest on one moiety of the whole- estate, as well that part of it which was still in bonds, &c. as on that part of it which had been actually vested in stock. As the view of the testator was to provide for his only daughter, the instruction as to the investment was probably designed merely to designate the kind of property which he desired his estate permanently to consist, and not that the benefit of his bequest should be delayed. His daughter would be accommodated, and therefore his views best accomplished, if one half of the income of whatever nature were paid over as received. 2 Fonbl.. 59. Fearne, 200. ' 1 Bro. C, C. 220. Courts of Equity were astute in giving effect to a will in favour of a child. 2Desaus. 32. 1 Ves. 89. He cited also Robinson v. Robinson, 4 T. R. 83. Hoe v. Halley, 8 T. R. 5. Doe v. Applin, 4 T. R. 83.
    
    But whether the first ground was tenable or not, it was a positive rule of equity, established on the soundest reasons, that all legacies or bequests, like this, should bear interest from the end of a year and a day after the death of the testator, and in the case of children sooner. The estate, being left to the discretion of the executors, would not, in the case of children, prevent the legacy from bearing interest from the death of the testator. 2 P.. W. 26. A legacy, charged on a particular fund, would carry interest as well as where it is charged on the estate generally. 2 Roberts on Wills, 97. 3 Desaus. 387. The same rule applied where the estate was directed to be sold. The executors were to be regarded as trustees, and it was to be presumed that they had done what ought to have been done. 1 Ves. Jun. 357. 6 Ves. 534. 5 Rob. 71. 2Atk. 143. 4 Bro. C. C. 490. 2 Ves. 91.
    23Nov. 1825.
    
      Dawson, contra,
    cited 7 Ves. 368, for the rules for the construction of wills, A legacy is not said to be vested when the sum is uncertain. 1 Ves. 57. 2 Bridgman’s Dig. 187. 4 Ves. 1. 1 Ves. 10. 4 Bacon, 436. If there is no fund out of which the legacy is to be paid, it will not carry interest. Pearson v. Pearson, 1 Scho. & Lef. 12. Interest was only decreed on a legacy of stock after the expiration of a year and a day. Webster v. Hale, 8 Ves. 410.
   Cuma, per

Nott, J.

The will in this case must be so construed as will best effectuate the intention of the testator, if in so doing we do not violate any established rule of law. The plain and manifest intention of the testator appears to have been to allow his daughter one half of the proceeds of his whole estate for her own use, behoof and benefit, and that of her family, during her life. He does, to be sure, point out the manner in which the money is to be raised. It is by the dividends of stock, to be purchased with the proceeds of the sale of his estate. Suppose the estate had never been sold, must the complainant have lost her legacy 1 Suppose it to have been sold and the. money loaned out upon interest instead of being vested in stock, would she hot be entitled to a dividend of that interest, or what would amount to tire same thing, interest upon the legacy 1 I entertain no doubt of it. And that, indeed, is the very 9ase under consideration. The estate has been sold, and instead of calling it in and vesting it in stock, it is suffered to remain out upon interest. It certainly must have been the intention of the testator, that she should receive her portion of the estate as soon as it became productive. Equity requires that it should be so, and it is not opposed to any rule of law. The time when in- ' terest shall be allowed upon a legacy does not depend upon the time when it is received, but when in contemplation of law it may be received. Therefore, in England, it seems to be settled as a general rule, that a legacy shall carry interest after a year from the death of the testator, even though it appears that it could not by .any diligence be collected within that time, because in contemplation of law it might have been done. The case of Wood v. Penorye, 13 Ves. 325, is very analogous to the case now under consideration. The testator had given several legacies to be paid out of money due on an Irish mortgage, when' the same should be recovered, upon trust, to place out the said sum in government or other good securities, and pay the interest or dividend to the testator’s niece for life, for her separate use, &c. At the time of the testator’s death, the money due on the mortgage was still outstanding, and therefore could not be placed out upon government securities according to the directions of the will; yet the Court allowed interest upon the legacy from the death of the testator. The abstract question, whether the complainants shall receive a dividend of the interest accruing on the bonds is the only question submitted to us. The time when it shall commence is not involved in the case. And I have no doubt but that it ought to be allowed. If the. estate had been sold upon a long credit without interest, and the bill .had been brought for interest on the legacy before the payment became due, it might,- 'as was observed by the counsel, have presented a grave question for the consideration of the Court. But as the bonds are a produc-live fund in the hands of the executors, there can be no reason why the complainants should not have the benefit of it. The circumstance that the legacy was intended as a provision for the wife and children is a reason why the interest should be allowed upon it. If a legacy be given out of land it shall carry interest from the death of the testator, because the land yields a profit. So, if a legacy be payable out of personal estate consisting of mortgages carrying interest, and no time be mentioned for payment. 2 P. Wms, 26, 27. The Chancellor says in his decree, it is, impossible to read the will without seeing that the grand children are the peculiar objects of testator’s bounty.” But I do not discover, from the will, that his daughter is less so than her children. And unless it were so clearly expressed, we cannot suppose that his affection for his child was less than that for his grand children. But even if it were more manifest that his grand children were' the principal objects of his bounty, I should, not suppose that he would be less anxious about their present comfort than their future welfare. It is unnatural to suppose that it was his wish to cramp his daughter and her children in their means of support during her life, for the purpose of accumulating a fund for them after her death. I am of opinion, therefore, that the decree of the Chancellor ought to be reversed and the report of the Commissioner be confirmed.

The time when interest shall be allowed upon a legacy does not depend on the time when it. is received, but when in law it may be received.

General rule that a legacy carries interest from one year after testator’s death, though it appear that it . could not by any diligence be collected in that time. English rule.

When the interest commenced not involved in this case.

Bonds be-ingproductive interest on them allowed legatee, being intended as a provision for maintenance.

When interest allowed on legacies ,out of land, or mortgages bearing interest.

Decree reversed.  