#### *Johnson v. Mitchell.

October, 1822.

Executors — Legacy in Trust — Payment of. † — 'Where a legacy is left in trust and the trustee refuses to act. tbe executor is not bound to pay the legacy until a new trustee is appointed by the Court of Chancery, and is not chargeable with interest, before the decree.

This was an appeal from the Richmond chancery court, where Barbara H. Johnson, by Francis Johnson, her husband and next friend, brought a suit against William Mitchell, acting executor of Thomas Mitchell, deceased, to recover a legacy which had been left to the said Barbara, by her father, the said Thomas Mitchell. By the will of the said T-homas, two thousand pounds were bequeathed to Thomas Johnson, in trust for the use and benefit of his daughter Barbara H. Johnson, during her coverture with Francis Johnson, and in case she should die during the life of the said Francis, then the legacy was to be' equally divided among all the children of the said Barbara; but, if the said Francis should die, living the said Barbara, then, and in that case, she was to have the said legacy absolutely. Thomas Johnson, the trustee,» refused to act; whereupon the court of chancery, by consent of parties, appointed William Quarles, trustee, to receive the said legacy, upon his giving bond and security in the amount of 40001. conditioned to hold the said legacy, to be applied as the will directed. Upon the execution of the bond, approved by the commissioner, the chancellor decreed, that, “as there was not heretofore any person legally authorised to receive the legacy in question, interest thereon should not be paid but from the date hereof,” and that the defendant should pay the legacy aforesaid, to the said William Quarles, to1 be held by him in trust, for the said Barbara H. Johnson, as directed by the said testator’s will, with interest thereon from the date of the decree, until paid.

*From this decree the plaintiff appealed.

Nicholas, for the appellant,

contended, that under the circumstances of this case, interest should have been allowed after a year from the qualification of the executor. The general rule is established by many cases, particularly by Jolliffe v. Crew,(a) Granberry v. Granberry,(b) and many _ others, (c) Indeed, there are cases in which interest runs from the death of the testator.(d) One of these cases is, where maintenance of a child is the object. Here the appellant was the child of the testator. The want of a trustee is of no consequence, since a court of equity would at all times have supplied that want, and it was the duty of the executor to have filed a bill against the first trustee, and bring the money into court, (e)

W. Hay, junr. for the appellee,

relied upon the case of Cavendish v. Fleming, (f) as an express decision in point, to prove that where there is no hand to receive a legacy, interest upon it ought not to be charged, it not appearing that the executor made interest with the money.

Nicholas replied.

(a)

 Rev. Code of 1819, vol. 1. p. 205, § 44.

†

See monographic *note*on "Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.

(a)

 Free. In Chan. p. 161.

(b)

1 Wash. 246.

(c)

 2 Haddock, 64, and the cases there cited.

(d)

 I Vern. 251; 2 Maddock. 64.

(e)

 2 P. W. 26, Maxwell v. Wittenall; 2 Maddock, 67.

(f)

 3 Mm 198.

JUDGE BROOKE,

October 19. delivered the opinion of the court, consisting of judges Brooke, Coalter and Green.*

It appearing that no person was authorised to receive the legacy, and it not appearing affirmatively, that the executor or his testator’s estate, received interest on the fund out of which the legacy was payable, under the authority of the case of Cavendish v. Fleming, in this court, the court affirms the decree.

*

Jddge Gbeen had been appointed by the executive to fill the vacancy occasioned by the death of Judge Roane. — Note in Original Edition.