#### JOHN E. PATTON *and others against*THOMAS S. PATTON *and others.*

Where a legacy is charged with a certain sum, bearing interest from a given day, which is long before the death of the testator, but it appearing that the said legacy had been advanced to such legatee before the day specified for interest to accrue, *Held*that he was properly chargeable with interest from that day.

PetitioN to rehear a decree, made at August Term, 1856.

The cause in which this decree was made is reported in 2nd Jones’ Eq. Rep. 494, which gives a view of all the facts necessary to the decision of the questions then arising. It becomes necessary, however, to the elucidation of the points raised by this petition, to state further, that in the 14th item of the will of James Patton, sen’r.,he bequeaths as follows: “ To my daughter Ann E. Perkins, $5,628, to be paid her and her children in equal proportions, at such periods before her youngest child shall attain the age of twenty-one years, as my son James may, in his discretion, consider best, *with interest from the fii'st of May,*183J.” * * *“*Of the legacy to my daughter Ann, I direct that two thousand shall be paid by my four sons (John, James, Thomas and Benjamin,) in *331equal proportions — $500 each, out of the legacies to them given.” The will was dated on 1st of October, 1835, and the testator died in 1815.

In the report of the commissioner, it appears that John E. Patton was charged, by him, with interest on the $500 which he was directed by the will to contribute to the legacy of his sister, Mrs. Perkins, (now Mrs. Smith,) from 1st of May, 1837, he having had possession of the property bequeathed, during the whole time since 1835, which more than doubled the amount, being in the aggegate $1070. In their argument to the Court, the petitioners’ counsel contrasted the magnitude of this sum with that against Thomas S. Patton, upon which interest was only counted from 1815, the time when he came to the enjoyment of his legacy. See *Patton*v. Patton, ubi supra. The prayer is to modify the decree so as to allow interest on his part of the legacy to Mrs. Smith from the year 1815, the date of the testator’s death.

*Gaither*and *JST. W.*Woodjvn, for jilain tiffs.

*Baxter*and *Avery,*for defendants.

Battle, J.

There is no error in the decree so far as it affects John E. Patton. The testator, whose will was made in 1835, gave him, by the 2nd item, a considerable amount of property, consisting of both real and personal estate, which he says he had already put him in possession of, and which, of course, he was then enjoying. In the 11th item, the testator gives to his daughter Ann and her children a large legacy, to be paid with interest from the first day of May, 1837, and says that, of that legacy, his four sons shall each pay $500 out of the legacies given to them. The clerk and master was therefore right in charging John E. Patton with interest from the 1st day of May, 1837, as shown by his report.

The testator gave to his son Thomas, directly, but a very small legacy", to wit: the stock, &c., on the Swannanoah Farm, and in consequence of the dealings between him and his brother Janies, the executor, he did not get the benefit of it as a *332legacy until the death of the testator in 1845, it being shown by the report, that interest is calculated in *his favor from*that time only. It would seem, then, to be just that he should not be charged with interest on the legacy to his sister until that time. Rut if that is not so, still John has no right to take exception, as he is clearly chargeable with interest from the time mentioned in the will, to wit, the 1st of May, 1837. His petition to rehear, must therefore be dismissed.

We have referred to the decree so far as it affects Thomas, for the purpose, only, of explaining the reasons why we overrule the petition of John E. Patton. We cannot give any direct opinion upon the case of Thomas, until it is properly brought before us.

Pbb Oubiam, Petition to rehear dismissed.