any thing by way of abatement, unless there be not sufficient without it (a) (61). Upon the same principle, if the legatees (a) 2 Vern. 111. (61) A specific legacy is an immediate gift of any fund bequeathed, with all its produce; and is therefore an exception to the general rule, that a legacy does not carry interest till the end of a year after the testator's death: (Raven v. Waite, 1 Swanst. 557; Barrington v. Tristam, 6 Ves. 349:) and, though the payment of a principal fund, bequeathed to an infant, may depend on his attaining his majority; yet, the interest accrued from the death of the testator, may belong to the legatee, notwithstanding he does not live to take any thing in the principal. (Deane v. Test, 9 Ves. 153.) The criterion of a specific legacy is, that it is liable to ademption; that when the thing bequeathed is once gone, in the testator's lifetime, it is absolutely lost to the legatee. (Parrot v. Worsfield, 1 Jac. & Walk. 601.) When, therefore, a testator has bequeathed a legacy of certain stock in the public funds, or of a particular debt, so described as to render the bequest, in either case, specific; if that stock should be afterwards sold out by the testator, or if that debt should, in his lifetime, be paid or cancelled, the legacy would be adeemed. (Ashburner v. M'Guire, 2 Br. 109.) And it appears that there is no distinction between a voluntary and a compulsory payment to the testator, as to the question of ademption. (Innes v. Johnson, 4 Ves. 574.) The idea of proceeding on the animus adimendi, (though supported by plausible reasoning,) was found to introduce a degree of confusion into the decisions on the subject, and to afford no precise rule. (Stanley v. Potter, 2 Cox, 182; Humphreys v. Humphreys, 2 Cox, 185.) It seems, therefore, now esta blished that, whenever the testator has himself received, or otherwise disposed of, the subject of gift, the principle of ademption is, that the thing given no longer exists; and if, after a particular debt given by will had been received by the testator, it could be demanded by the legatee, that would be converting it into a pecuniary, instead of a specific legacy. (Fryer v. Morris, 9 Ves. 363; Barker v. Rayner, 5 Mad. 217.) Where, indeed, the identical corpus is not given; (Selwood v. Mildmay, 3 Ves. 310;) where the legacy is not specific, but what is termed in the civil law a demonstrative legacy-that is, a general pecuniary legacy, with a particular security pointed out as a convenient mode of payment; there, although such security may be called in, or fail, the legacy will not be adeemed: (Guillaume v. Adderley, 15 Ves. 389; Sibley v. Perry, 7 Ves. 529; Kirby v. Potter, 4 Ves. 751; Le Grice v. Finch, 3 Meriv. 52; Fowler v. Willoughby, 2 Sim. & Stu. 358:) but, when it is once settled that a legacy is specific, the only safe and clear way, it has been judicially said, is to adhere to the plain rule-that there is an end of a specific gift, if the specific thing do not exist at the testator's death. (Barker v. Rayner, 5 Mad. 217; S. C. on appeal, 2 Russ. 125.) Courts of equity are always anxious to hold a legacy to be pecuniary, rather than specific, where the intention of the testator is at all doubtful. (Chaworth v. Beech, 4 Ves. 566; Innes v. Johnson, ibid. 573; Kirby v. Potter, ibid. 752; Sibley v. Perry, 7 Ves. 529; Webster v. Hale, 8 Ves. 413.) The greater part of this note is extracted from 1 Hovenden's Suppl. to Ves. jun. Reports, 312. had been paid their legacies, they are afterwards bound to refund a rateable part, in case debts come in, more than sufficient to exhaust the residuum after the legacies paid (b). And this law is as old as Bracton and Fleta; who tell us (c),“ si "plura sint debita, vel plus legatum fuerit, ad quæ catalla "defuncti non sufficiant, fiat ubique defalcatio, excepto regis "privilegio." die before the And if testator, the legacy is lapsed, attains, and goes to form part of the resi duary estate. If the legatee dies before the testator, the legacy is a lost if the legatee or lapsed legacy, and shall sink into the residuum. a contingent legacy be left to any one, as when he or if he attains, the age of twenty-one, and he dies before that time, it is a lapsed legacy (d) (62). But a legacy to one, to be paid when he attains the age of twenty-one years, is a vested legacy; an interest which commences in præsenti, although it be solvendum in futuro: and if the legatee dies (c) Bract. 1. 2, c. 26; Flet. 1. 2, c. 57, s. 11, (d) Dyer, 59; 1 Eq. Cas. Abr. 295. (b) 2 Vern. 205. (62) A legacy may be so given, as that the legatee shall be entitled to the interest or produce thereof, from the time of the testator's death to his own, although such legatee may not live long enough to entitle himself to the principal. (Deane v. Test, 9 Ves. 153, as cited in the last note.) But where a bequest is made to a legatee, "at his age of twenty-one," or any other specified age; or, "if he attain such age;" this is such a description of the person who is to take, that if the legatee do not sustain the character at that time, the legacy will fail: the time when it is to be paid is attached to the legacy itself, and the condition precedent prevents the legacy from vesting. (Parsons v. Parsons, 5 Ves. 582; Sansbury v. Read, 12 Ves. 78; Errington v. Chapman, Ibid. 24.) But if the legacy be to an infant, "payable at twenty-one," the legacy is held to be vested; the description of the legatee is satisfied, and the other part of the direction refers to the payment only. This distinction (as stated in the text) is borrowed from the civil law, but is adop ted as to personal legacies only, not as before that age, his representatives shall receive it out of the testator's personal estate, at the same time that it would have become payable, in case the legatee had lived (63). This distinction is borrowed from the civil law (e); and its adoption in our courts is not so much owing to its intrinsic equity, as to its having been before adopted by the ecclesiastical courts. For, since the chancery has a concurrent jurisdiction with them, in regard to the recovery of legacies, it was reasonable that there should be a conformity in their determinations; and that the subject should have the same measure of justice in whatever court he sued (ƒ). But, if such legacies be charged upon a real estate, in both cases they shall lapse for the benefit of the heir (g); for, with regard to devises affecting lands, the ecclesiastical court hath no concurrent jurisdiction (64). And, in case of a (e) Ff. 35, 1, 1 & 2. (f) 1 Equ. Cas. Abr. 295. (g) 2 P. Wms. 601. (63) But it seems, if the testator's personal representatives were to be accountable for interest, and the delay of payment, as to the principal, was only directed with reference to the minority of the legatee, his executor or administrator may claim the legacy forthwith, provided a year has elapsed since the death of the original testator. (Crickett v. Dolby, 3 Ves. 13; Cloberry v. Lampen, 2 Freem. 25; Anonym. Ibid. 64; Anonym. 2 Vern. 199; Green v. Pigot, 1 Br. 105; Fonnereau v. Fonnereau, 1 Ves. sen. 119.) But a small yearly sum directed to be paid for the maintenance of the infant legatee, will not be deemed equivalent, for the purpose of vesting a legacy, to a direction that interest should be paid on the legacy. (Chester v. Painter, 2 P. Wms. 336; Hanson v. Graham, 6 Ves. 249; Roden v. Smith, Ambl. 588.) If a bequest, however, be made to an infant, at his age of twenty-one years, and if he die before that age, then over to another;" in such case, the legatee over does not claim under the infant, but 66 the bequest over to him is a distinct substantive bequest, and is to be paid on the death of the infant under twenty-one. (Laundy v. Williams, 2 P. Wms. 480; Crickett v. Dolby, 3 Ves. 16.) (64) Where legacies are charged upon land, or the gift at all savours of the realty, the trusts must be carried into execution with analogy to the common law. (Scott v. Tyler, 2 Dick. 719; Long v. Ricketts, 2 Sim. and Stu. 183.) And the general rule of common law is, that legacies, or portions, charged on lands, do not vest till the time of payment comes. (Harvey v. Aston, 1 Atk. 378, 379; S. C. Willes, 91; Harrison v. Naylour, 2 Cox, 248.) But a testator may make a legacy vested and transmissible, though charged on a real estate, and payable at a future time, provided he distinctly expresses himself to that effect, or the context of the will affords a plain implication that such was his intention. (Hargrave's note to Co. Litt. 237.) In coming to a just conclusion as to this matter, it vested legacy, due immediately, and charged on land or money in the funds, which yield an immediate profit, *in- [ 514 ] terest shall be payable thereon from the testator's death (65); but if charged only on the personal estate, which cannot be immediately got in, it shall carry interest only from the end of the year after the death of the testator (h) (66). (h) 2 P. Wms. 26, 27. has been often said, it ought to be examined whether the testator has directed payment to be postponed, from a consideration of circumstances merely personal as to the legatee, or with reference to the condition of the estate to be charged, and the interests of others therein. When the direction, that the charge shall not be raised till a future day, refers to the circumstances of the person to take (as, for instance, if the charge be intended for a portion), there the construction has been, that the gift is so connected with the purpose for which it was given, that if such purpose fail, the land ought not to be charged: but it has been as repeatedly said, a legacy vests immediately in interest, though it be charged on lands, if the time of payment appears to have been postponed only out of regard to the circumstances of the estate. (Lowther v. Condon, 2 Atk. 128; Dawson v. Killet, 1 Br. 123; Godwin v. Munday, Ibid. 194; Smith v. Partridge, Ambl. 267; Sherman v. Collins, 3 Atk. 320.) (65) The old authorities are in conformity with the text, and hold, that, where a fund, of whatever nature, upon which a testator has charged legacies, is carrying interest, there, interest shall be payable upon the legacies, from the time of the testator's death. But that is exploded now by every day's practice. Though a testator may have left no other property than money in the funds, interest upon the pecuniary legacies he has charged thereon is now never given till the end of a year after his death. (Gibson v. Bott, 7 Ves. 97.) The rule is different with respect to legacies charged on land. Whether the reason assigned for this distinction, in the text, and in Maxwell v. Wettenhall, (1 P. Wms. 25,) be the true one, has been doubted: a fund, consisting of personalty, may be" yielding immediate profits," as well as lands, but, it is obvious that the reason of the rule as to the commencement of interest upon legacies given out of personal estate, which is a rule adopted merely for convenience, (Garthshore v. Chalie, 10 Ves. 13; Wood v. Penoyre, 13 Ves. 333,) cannot apply to the case of legacies not dependent on the getting in of the personal estate, and charged upon lands only; in such case, interest, it has been said, must be chargeable from the death of the testator, or not at all. (Pearson v. Pearson, 1 Sch. & Lef. 11; Spurway v. Glyn, 9 Ves. 486; Shirt v. Westby, 16 Ves. 396.) (66) As a legacy, for the payment of which no other period is assigned by the will, (Anonym. 2 Freem. 207,) is not due till the end of a year after the testator's death; (Hearle v. Greenbank, 3 Atk.716;) and as interest can only be claimed for non-payment of a demand actually due; it is an undisputed general rule, that although a legacy vests (where no special intention to the contrary appears) at the testator's death, (Garthshore v. Chalie, 10 Ves. 13,) it does not begin to carry interest till a year afterwards, unless it be charged solely on lands. (See the Of donations mortis causa. Besides these formal legacies, contained in a man's will and testament, there is also permitted another death-bed last note.) That general rule, however, has exceptions: (Raven v. Waite, 1 Swanst. 557; Beckford v. Tobin, 1 Ves. sen. 310:) a specific bequest of a corpus passes an immediate gift of the fund, with all its produce, from the death of the testator. (Kirby v.Potter, 4 Ves. 751; Barrington y. Tristram, 6 Ves. 349.) Another exception arises when a legacy is given to an infant by a parent, or by a benefactor who has put himself in loco parentis; in such case, the necessary support of the infant may require immediate payment of interest. (Lowndes v. Lowndes, 15 Ves.304; Heath v. Perry, 3 Atk. 102; Mitchell v. Bower, 3 Ves. 287.) It must, however, be observed, this latter exception operates only when the child is otherwise unprovided for: when a father gives a legacy to a child, it will carry interest from the death of the testator, as a maintenance for the child, where no other fund is applicable for such maintenance; (Carew v. Askew, 1 Cox, 244; Harvey v. Harvey, 2 P. Wms. 22;) but where other means of support are provided for the child, then the legacy will not carry interest from an earlier period than it would in the case of a bequest to a perfect stranger. (Wynch v. Wynch, 1 Cox, 435; Ellis v. Ellis, 1 Sch. & Lef. 5; Tyrrel v. Tyrrel, 4 Ves. 5.) And the general rule as to non-payment of interest upon a legacy, before such legacy becomes due, must not be broken in upon by an exception in favour of an adult legatee, however nearly related to the testator; (Raven v. Waite, 1 Swanst. 588;) nor, as illegitimate children are no more, in legal contemplation, than strangers, (Lowndes v. Lowndes, 15 Ves. 304,) will interest be allowed, by way of maintenance for such legatees; (Perry v. Whitehead, 6 Ves. 547;) unless it can be satisfactorily collected from the will, that the testator intended to give interest. (Beckford v. Tobin, 1 Ves. sen. 310; Ellis v. Ellis, 1 Sch. & Lef. 6; Newman v. Bateson, 3 Swanst. 690.) Even in the case of a grandchild, an executor must not take upon himself to pay interest upon a legacy by way of maintenance, when that is not expressly provided by the will; for, though a court of equity will struggle in favour of the grandchild, (Crickett v. Dolby, 3 Ves. 12; Collis v. Blackburn, 9 Ves. 470,) yet, it seems, there must be something more than the mere gift of a legacy, something indicating that the testator put himself in loco parentis, to justify a court in decreeing interest for a grandchild's maintenance. (Perry v. Whitehead, 6 Ves. 547; Rawlins v. Goldtrap, 5 Ves. 443; Hill v. Hill, 3 Ves. & Bea. 186.) But, of course,. even when a legacy to a grandchild will never become due unless he attains his majority, still, maintenance may be allowed for his support during his infancy, provided the parties to whom the legacy is given over in case of the infant's death, are competent, and willing, to consent. (Cavendish v. Mercer, 5 Ves. 195, in note.) Under any other circumstances, when a legacy to infants is not given absolutely, and in all events, but is either not to vest till a given period, or is subject to being devested by certain contingencies, upon the occurrence of which it is given over; (Errington v. Chapman, 12 Ves. 25;) if the words of the will do not authorise the application of interest to the maintenance of the infant legatees, a court of equity never goes further than to say that, if it can collect before it all the individuals who may be entitled to the fund, so as to make each a compensation for taking from him part, it will grant an allowance for maintenance; (Errat v. |
