
    *Hite’s Executor v. Hite’s Legatees.
    March, 1824.
    Legacies — Interest on — From What Time Allowed— Case at Bar. — Testator gave $1,000 to each oí thirteen children: directed his executors to sell his whole estate when they should thinlr most expedient; and, out of the proceeds, to pay, first his debts, and then these legacies, agreeably to sen-ority; and gave the whole surplus to the same thirteen legatees. There being no other provision for these children, interest shall be allowed on these legacies from the testator’s death.
    Guardian and Ward — Right of Guardian to Waive Benefits. — It is not competent to guardians of infant parties, to waive any benefit to which the infants are entitled in a decree: and it is error to decree on such consent.
    Executors — Decrees against. — It is error to decree against an executor, absolutely, that he shall pay money at fixed future periods, in respect of funds not in hand, but which shall then come into his hands.
    This was an appeal from a decree of the Superior Court of Chancery of Staunton. The case was this:
    John Hite, by his last will and testament, after leaving his wife “a comfortable maintenance” (without specifying what,) and after reciting that he had made an ample provision for four of his children, (naming them,) devised and bequeathed, as follows: “And, as to the remaining part of my children,” (naming them, thirteen in number,) “I leave $1,000 to them, and each of them, and each of their heirs forever. It is my will and desire, that my executors hereafter mentioned, or any two of them, do make sale of my lands, and all other property, real and personal, whenever they shall think it most expedient; and out of the money arising from such sales, together with my bonds, notes, and book accounts, satisfy and pay all my just debts, and then the legacies above mentioned, agreeably to seniority: and, if there be any surplus after payment of my debts, and the legacies aforesaid, it is further my will, that the same be equally divided among all my said” (thirteen) “children, share and share alike.”
    The bill was exhibited by the eight youngest of these thirteen legatees, (one of whom, being of full age, sued in proper person; the rest, being infants, by next friend, though two of them attained to full age pending the suit,) *against the acting executor, against the testator’s widow, and the five eldest legatees; praying an account of the executor’s administration, a decree for the plaintiffs’ respective legacies of $1,000, and for their share of the surplus.
    It appeared, from the answers, and from the proofs adduced, and the accounts taken in the cause, that the executor had sold the whole subject; the laud (which was the chief and most valuable part of it,) on a credit, dividing the proceeds of the sale into' as many as twenty annual instalments, many of which are not yet due, and the last will not fall due till 1839: that he had paid to each of the five eldest legatees, their respective legacies of $1,000, principal without interest, at different dates, in the order of their seniority, successively, as the fund came into his hands: and that he was not chargeable with any unreasonable delay, in not having sooner paid the other legacies; nor was his conduct justly obnoxious to blame in any respect.
    It also appeared, that the widow had renounced the vague provision made for her by the will, and claimed her legal rights; and that she had incurred considerable expense in maintaining and educating her younger children, the plaintiffs; of which she asked, that an account might be taken, ■and that compensation might be decreed to her, in this cause, out of the plaintiffs’ respective portions.
    The Chancellor having directed all the accounts demanded by the parties, in general terms, the commissioner stated and reported, accordingly, accounts of the executor’s administration; of the amount due to each of the plaintiffs, on account of his legacy of $1,000; of the dates, at which each of those legacies were or would be justly payable, agreeably to seniority, and in respect to the coming in of the funds of the estate; and of the expenses incurred by the widow, for the maintenance and education of the legatees, respectively. But, in stating the amount due of the several legacies, he allowed no interest on them: and the plaintiffs excepted to the report, for that reason. *This was the only exception taken to the main report in the cause.
    The cause coming on to be heard on the report, and this exception to it, the Chancellor said, his impression was, that the plaintiffs were entitled to interest on their respective legacies, without then deciding the point; and directed the commissioner to reform the accounts, and state them on that principle. The commissioner reformed the accounts according to this instruction: and then it appeared, that the five eldest legatees having each received his legacy, instead of there remaining funds enough to pay the plaintiffs their legacies, with interest so computed, there was a deficiency of $3,G07.
    The Chancellor approved and confirmed this last report: observing — “The testator left seventeen children. For four of them, he states in his will, that he had made ample provision. To his thirteen remaining children, he bequeaths a legacy of $1,000 a piece, to be paid according to seniority; and directs the surplus of his estate to be divided among his said children. Of these thirteen legatees, it appears from the commissioner’s report, that the five eldest have been paid each his legacy of $1,000, and are satisfied. Tt appears from the last report, that the payment of the legacies, with their interest from the death of the testator, to the plaintiffs, instead of leaving a residuum, will create a deficit in the estate of $3,607. This deficit, the unsatisfied legatees, viz: the plaintiffs, could require to be apportioned among the whole thirteen legatees: but the plaintiffs waive this benefit, and agree to apportion this loss among themselves, in order to bring the controversy to a close; and the counsel for the defendants refuse to have the last report re-committed, for the purpose of calculating interest on the amount of the five legacies already paid, and apportioning the deficiency among the thirteen legatees, (which was offered to the defendants’ counsel, if he desired it;) he contending that there ought to be no interest allowed on these legacies, *until such time as the executor had so much as would pay off the legatees agreeably to seniority, and that there ought to be no abatement.” Therefore, the Chancellor proceeded to decree payment to the plaintiffs, according to the last report; giving each interest on his legacy from the testator’s death, till the time appointed for the payment thereof by the decree; and abating proportionally for the deficiency, from the amount due to each of these eight legatees; upon the usual condition, that 'the legatees should give the executor refunding bonds. And he decreed, that the legatees should be satisfied respectively, in the order of their seniority, out of the monies due from the proceeds of the sale of the estate, successively, as the instal-ments thereof should fall due: and, not adverting that many of those instalments were to fall due at periods yet far distant, .the decree was absolute, that the executor should pay the respective legatees at the several dates when the instalments of the monies should fall due. With respect to the widow, the decree gave her a third of the distributable surplus of the testator’s personal estate, (she having had dower of the real assigned her:) but, though it appeared by the accounts reported, that the plaintiffs were indebted to her for their maintenance and education, yet the Chancellor thought he could not regularly decree her satisfaction of those claims in this suit.
    The executor appealed to this Court.
    Wickham, for the appellant,
    made two objections to the decree:
    1st. That it was clearly erroneous, in charging the executor, absolutely, with the payment of the postponed legacies, at fixed future dates, in respect to the instalments of the funds which were to fall due at those dates; since, without any default of the executor, the instalments might very probably not be punctually paid, and possibly might not be paid at all. And this, he said, was an error in the *decree itself, not in the accounts on which it was founded, which only shewed the dates at which the funds were to come in; so that it was not necessary, that the Chancellor’s attention should have been drawn to the point by an exception; and, therefore, though the point was not presented in the form of an exception, it was open to correction in this Court.
    2d. That the Chancellor erred in allowing interest on these legacies. He acknowledged the principle, that where a legacy is given by a parent to a child, and the payrAent thereof is deferred, the Court will allow interest, to be computed on the legacy from the parent’s death, unless some provision be made by the will, for the maintenance of the child. See the cases collected, 2 Roper on Leg. 182-8. But, he insisted, that questions of this kind, like every other question on a will, must be determined by the intention of the testator; that, in the present case, the testator intended not to give interest on these legacies; that this appeared from the direction, that the legatees should be .paid according to seniority; and paid out of the proceeds of sales, which the executors were author-ised to make whenever they should think most expedient; and, yet more clearly, from the circumstance, that the whole surplus of the estate was given to these very legatees, share and share alike; so that, if interest be allowed on the legacies, it must be paid, not out of any distinct fund bequeathed or devised to others, or left undisposed of, but out of a subject bequeathed to the legatees themselves. He also argued, that the bequest of the whole surplus to the. thirteen legatees, was such a provision made for them by the will, as that the Court, in respect thereof, ought not to allow interest on the legacies.
    Leigh, for the appellees, answered:
    1st. That all the accounts, which were taken and reported in the Court of Chancery, from first to last, had *stated the legacies as payable, successively, at the dates when the in-stalments of the fund were to fall due: that the executor had never taken any exception to the commissioner’s reports for that cause: that it was not .a point on which the Chancellor had exercised, or was required to exercise, his judgment: the executor had acquiesced in the reports, in this respect: the Chancellor had only decreed according to the reports thus acquiesced in: therefore, the executor could not avail himself of the exception here.. Perkins v. Saunders, &c., 2 Hen. & Munf. 420. He said, it was obvious the whole controversy in the Court of Chancery, turned on the
    2d point. And, on this, he maintained, that the decree was perfectly right: that the direction, contained in the will, that the legacies should be paid according to seniority, and paid out of the proceeds of sales, which the testator gave his executors a general power to make, when they should deem most expedient, only shewed that the payment was deferred: that the reason why interest is allowed on a legacy from parent to child, the payment of which is deferred, and no provision made for the child in the mean time, is, that unless interest be allowed, the child is left destitute of maintenance until the time appointed for the payment of his legacy: that this reason held in the present case; for, no manner of provision is made for the legatees, during the interval between the testator’s death and the time of payment of the legacies: that, as to the surplus, none of them were to have any of that, on any account, not even to furnish them bread and raiment, till all the particular legacies of $1,000 were fully paid off and satisfied: and, finally, that the testator meant to give equal legacies to all of his thirteen children; and equality could in no way be accomplished, but by giving interest on these legacies.
    Some errors were alledged in the details of the decree, and of the accounts on which it was founded, and were the subject of observation at the bar: but, these involved no principle.
    *March 16.
    
      
      Legacies — Interest on — From What Time Allowed.— Where a legacy Is given to a trustee for the support of the family of one of the testator’s children, and made payable out of the proceeds of the sale of real estate, such legacy is to bear interest from the death of the testator. Dunn v. Renick. 33 W. Va. 481. 10 S. E. Rep. 812, citing Hiten. Hite, 2 Sand. 409: Bradford v. McConibay, 15 W. Va. 732, and Couch v. Eastham, 29 W. Va. 784, 3 S. E. Rep. 23, as authority for the proposition.
      The general rule is that interest on a general legacy is payable from one year from the testator’s death. But if the legacy is given by a parent to a child, the interest should generally be computed from the death of the testator, and this rule is not affected by the fact, that the legatees, the testator’s children, are also residuary legatees. Anderson v. Piercy, 20 W. Va. 327. 328, citing principal case. See further, monographic note on “Legacies and Devises" appended to Early v. Ea'rly, Gilni. 124.
    
    
      
      Guardian and Ward. — See monographic note on “Guardian and Ward” appended to Barnum v. Frost, 17 Gratt. 398.
    
    
      
      Executors. — See monographic note on “Executors and Administrators” appended to Rosser v. De-priest, 5 Gratt. 6.
    
   The PRESIDENT, delivered the opinion of the Court:

That though the bequest to the thirteen specific and residuary legatees, are directed to be paid successively, according to seniority, as the funds of the estate, applicable to that purpose, came in; yet, that it was the intention of the testator to put them on the footing of perfect equality, as to the value of their respective interests in his estate; and that, for the purpose of effecting that equality, the said legacies should carry interest from the death of the testator; and that if there should be a deficiency of estate to pay the full amount of the legacies, with interest as aforesaid, they should abate equally: that, to effect this equality, care should be taken, in making up the accounts, that the legatees who are necessarily postponed, in consequence of the situation of the funds of the estate, should receive as much principal and interest, finally, as those legatees who were first paid, by calculating interest from the death of the testator, to the period when the postponed legacies are paid; and, to this end, as the personal assets were more than sufficient to pay the debts, a separate account should have been taken of the administration of the personal estate, upon the principles settled by this Court, in the case of Granberry v. Granberry: that, as soon as the debts were paid, the balance of principal and interest of that account should have been struck, as of that date; and, after setting apart one-third thereof to Cordelia, the widow of the testator, the residue should have been considered as a fund in the hands of the executor, for the payment of legacies; to which fund should be added, the principal and interest of the rents of lands received, after setting apart one-third thereof as the widow’s portion; and also the proceeds of the sale of land, made by the executor, and received before that time, deducting therefrom his commission. To- this fund, should also be added the balance of the debt due from Edmund Nichols, after deducting *therefrom one-third part for the widow and the executor’s commission; and also the instalments, coming due after that date, of the debt of Jacob Nicholas, whether paid or not, should be added; deducting therefrom the executor’s commission, and carrying into the statement of the fund for the payment of the legacies, each of such instalments, at such a discount, that each instalment, when due, will pay the principal thus carried into that fund, with interest thereon from that date, until such instalment became, or shall become due: that this aggregate fund should be divided into thirteen equal parts; one of which should be retained by the representatives of the said Lewis, in right of his wife; one should be passed to the credit of Harris and wife, against which should be charged the payments, with interest thereon, made by Lewis, t.he executor, to Harris; and, if such payments, with interest, should fall short of such credit, the balance should be decreed to them; or, if they exceed such credit, Harris should be decreed to refund to the representatives of the said Lewis; one other part should be placed to the credit of Browne and wife, subject to the effect of payments made to him, in like manner; one other should be placed to the credit of Francis A. Hite, subject to the effect of payments made to him, in like manner; and another part should remain in the hands of the representatives of said Lewis, for the use of John White. The amount retained, and payments made, by the executor Lewis, or his representatives, ought to be considered as first applicable to the satisfaction of the interest due by him on the real and personal fund, up to the time that a balance should be struck of the administration of the personal estate, as aforesaid; and the residue of the aggregate fund will be equivalent to the principal money, applicable as of that day to the satisfaction “of the legacies. So that the representatives of Lewis should be decreed to pay one of the said thirteen equal parts, with interest thereon, from the day the balance of the administration account of the personal ^estate shall be struck, until payment; to each of the remaining eight legatees, in succession, according to seniority, out of the funds already received, as far as they will extend, and out of the funds thereafter to be received, as fast as they come to hand. And the representatives of the said Lewis should be decreed to pay to the testator’s widow, one-third of the balance of the principal and interest of the administration of the personal estate, and one-third of Edmund Nichols’s debt and interest, if received; and, if not received, when received, and the rents of the lands, rer ceived as aforesaid; she and the legatees giving refunding bonds as the law directs. And liberty should be reserved to the parties, to apply, as occasion may require, to the Court, to correct any irregularity which may possibly arise from the failure to collect any outstanding funds, and to enforce the decree.

The Court is further of opinion, that the decree is erroneous in directing the executor to pay, at fixed future periods, several sums of money, whether the same should then have jome to his hands or not; and that it was not competent to the adult plaintiffs, or the guardians of the infant plaintiffs, to waive the rights of the latter, to a full and equal proportion of the estate, and to throw on them more than an equal proportion of the deficiency of the funds, for the payment of the legacies.

It is, therefore, decreed and ordered, that the decree aforesaid be reversed and annulled; and that the appellees John Effin-ger, Isaac Hite, and Abraham Hite, do pay to the appellants their costs by them in this behalf expended; and that the cause be remanded for further proceedings to be had therein, according to the principles of this decree. But, this decree is without prejudice to any suit Cordelia Hite, the widow, may be advised to bring, or any claim she may have against her children, or any of them, for maintainance and tuition.  