#### THEODORE F. KEEHLN AND WIFE *Ex'rs against*FRANCIS FRIES AND OTHERS.

“Where a pecuniary or general legacy is given, but not payable until the legatee attains the age of twenty-one, with a bequest over divesting the legacy in case ho dies under age, the personal representative will take the accumulated interest.

Cause removed from the Court of Equity of Forsyth county.

Antoinette L. Breittz died in the county of Forsyth, having made a last will and testament, which was admitted to probate, and O. D. Keehln, the executor therein named, qualified as such. C. D. Keehln afterwards died, leaving a last will and testament, which was also admitted to probate, and Theodore F. Keehln and wife, the executors therein named, qualified acpording to law, and undertook the execution of the wills of both Antoinette Breittz and C. D. Keehln.

This hill is filed for a construction of certain clauses of the will of Antoinette Breittz, set out below :

The second clause of this will is as follows: “ It is my will and desire that my sister, L. F. Bagge, after nay decease, take my daughter, Sarah E. Breittz, entirely under her care and charge, and, it is further my will, that my said sister, L. F. Bagge, receive out of my estate the sum of. $150 each and every year, until my said child, Sarah, shall have attained the age of ten- years, and after the expiration of said ten years, *274the sum of $300 for the extra use and benefit of my said daughter, Sarah E. Brietz.”

7. “ I give and bequeath unto my daughter, Sarah E. Breitz, all my books, piano, secretary,’all my clothes, &c., forever, but my sister, L. F. Bagge, to take all under her care, until my said daughter, Sarah E. Brietz, either may make use of it, or when she becomes of age; should, however, my said daughter, Sarah E. Brietz, depart her life before she arrives at the age of twenty-one years, then the property mentioned in this paragraph, together with all the property, monies, notes, land or whatever it may be, that may have come from me to my said daughter, Sarah E. Brietz, is to go to the children of my said sister, Nebecca M., intermarried with Henry A. Shultz, share and share alike.

10. “ My will and desire is, that all the residue of my estate after taking out the devises and legacies above mentioned, to be paid over to my said daughter, Sarah E. Brietz, and her heirs forever.”

The will appointed C. D. Keehln, guardian of Sarah E. Brietz, which office he discharged up to his death. The said Sarah E. Brietz, the daughter and legatee died under twenty-one, and the defendant, Francis Fries, was appointed her administrator, against whom, and the three children of Mrs. Shultz, this bill is filed. The only point upon which it prays the instruction of the Court, is, whether the rents and profits which accumulated between the death of the testatrix, and that of her daughter, Sarah E. Brietz, goes to the ulterior legatees, or the administrator of the said Sarah.

Wharton, for the plaintiff.

Moore, *Masten, Fowle*and *T. J. Wilson,*for the defendant.

MaNly, J.

As children are supposed to be the peculiar objects of a parent’s care, constructions most favorable to their rights, have been generally adopted by the courts.

"We accordingly find that a pecuniary legacy to a *child does*not stand in all respects upon the same footing with one to a *275person, not in tbat relation. As a general rule, when a day of payment is fixed for a legacy, interest will not be counted upon it, until the day arrive, but it is not *generally so*in re.spect to a child’s legacy, because, as it is said, of the child’s necessity, in the mean time, for support.

So, when a general legacy is left to a child in such a way as to vest, but upon a *condition svhsequent,*as upon dying '•before obtaining the age of twenty-one, it is to divest and go over, the child will be entitled to the interest or profits for support; and, if he die, the accumulation will go to his personal representative. This general rule is supported by many legal authorities, and is only departed from, as we think, when a different *intention*is manifest in the provisions of the will, as when complete provision for support is otherwise ¿nade, and a purpose declared to leave the interest to accumulate and •go over, upon the happening of the condition, to the ulterior legatee.

The case of *Hearle*v. *Greenbank,*reported in 3 Atkins, 697, which was cited on the argument, is a case that falls under the exception above stated. 'The general rule was there admitted to be that such legacies bore interest.

The governing principle in construing every testáhrehtary paper, is to discover and carry into execution the testator’s purposes. Rules by which we are guided i'fi the interpretation of language, have this end in view-, ’and are made subservient to if. It seems to us, upon a consideration of all parts of the will having relation to the matter in controversy, that the testatrix intended the donation in the second clause of hef will in aid only of the other fund for education and support. The language used “fortheextmm6andl)enefii” ofher daughter, does not exclude, but rather suggests the idea Of other means of support. There ió no part of the will which favórs a different conclusion, or indicates an intention to tie up the accumulation of this estate during the minority of the daughter and that they should -gó to her only in case she obtained the age of twenty-one; thé fund is given to her in the 10th clause, in language sufficiént and proper to convey a vested interest, and *276the provision in the seventh oíanse, by the construction most unfavorable to the rights of the *legatee,postpones,*merely, the possession until the age of twenty-one. ' It follows from this view of the will, that the interest and profits of the entire estate of Sarah E. Brietz, vested absolutely in her, were, during her life-time, subject to her education and support, and upon her death, under age, passed to her personal representative. The conclusion to -which we thus come, is fortified by a number of analogous cases, which seem to establish the rule of interpretation “that wherever a pecuniary or general legacy cy is given out, not payable until the legatee attain the age of twenty-one, with a bequest over, divesting the legacy, in case he die under age, the personal representative will take the accumulated interest; *Acherly*v. *Wheeler,*1 P. Williams, 783; *Nickols*v. *Osborne,*2 P. Williams, 419; *Barber*v. *Barber,*14 Eng. Con. Chan. 388.

We are of opinion, therefore, that the personal representative of Sarah E. Brietz, will take the interest, dividends and profits accumulated upon her estate, from the death of the testatrix to the time of the said Sarah’s death, subject to a due course of administration, and that the capital only, will pass to the children of Rebecca M. Shultz.

Pee Cubiam, Decree for an account.