#### *Isaac Telfair, Ex’or.*vs. *Howe et al.*

Testatrix by tbe 9tb clause of ber will bequeathed to A. C. “ one thousand dollars to be placed at interest by my executors for ber use, and given to ber on ber marriage ; at ber death to be given to ber mother: ” after several pecuniary bequests she concluded tbe 12th clause of ber will as follows : “ All tbe

above legacies must be paid out of tbe interest of my estate, or bonds, in succession as herein stated above.” A. C. having married, *held,*that she was entitled to interest on her legacy from one year after tbe death of testatrix.

*Before*Caldwell, Ch., *at*Charleston, June, 1849.

Caldwell, Ch. Mrs. Ann Timothy made her will on the 8d of June, 1837, and among other things, bequeathed by the 9th clause as follows : “ I do leave and bequeath to Ann Timothy Cleland, daughter of my friend, Maria S. Cleland, one thousand dollars, to be placed at interest by my executors for her use, and given to her on her marriage; at her death to be given to her mother, the said Maria S. Cleland.” After bequeathing several other pecuniary legacies, she concludes the 12th clause of her will as follows: “ All the above legacies must be paid out of the interest of my estate, or bonds, in succession, as herein stated above.” Ann Timothy Cleland has intermarried with Captain M. *255S. Howe, of tbe United States Army, and the executors have paid off all the legacies that preceded hers, and have tendered the sum of one thousand dollars to her and her husband, which they refused to receiye, unless the executor would pay them the interest thereon, from one year after the testatrix’s death ; and the question is, are they entitled to the interest ?

Interest is allowed on legacies, either from the words used in the will, from the relation of the legatee and testator, or from the necessity of the legatee. This case cannot come within the two last classes, and must therefore turn upon the construction of the will.

When no time is specified for the payment of the legacy, the general rule is that it shall bear interest after one year from the testator’s death; this probably arose from the practice of the Ecclesiastical Courts in England.

Within that time, it may be presumed the personal estate has been reduced into possession by the executor. Our Act (1789, P. L., 494) protects administrators and executors from suit, for the nine months succeeding the death of the intestate or testator, and allows his legal representative twelve months to ascertain the debts due to and from the deceased. The phraseology used in the will is peculiar: “ one thousand dollars, to be placed at interest by my executors for her use, and given to her on her marriage.” If the testatrix had stopped here, it would not admit of doubt that she intended the legatee should enjoy the use of the sum bequeathed to her, either before or at her marriage. If the *corpus*of the legacy,was intended to be given to the legatee at her marriage, and no interest to be allowed on it, why should she have made it the duty of her executor to place the one thousand dollars at interest for her use ? Eut it has been argued, that the concluding sentence of the 12th clause of the will shows that interest was not intended to be given, and that the legatee cannot claim it under the general rule, as the preceding legacies were to be paid in succession before it, and the interest of the estate and *256the bonds were insufficient at that time to permit the means of placing the one thousand dollars at interest.

The impracticability of paying the debts, or of collecting the funds of the estate, cannot change the rule. In *Cfreening*vs. *Bather,*relied on by Lord Redesdale, in *Pearson*vs. *Pearson,*1 Sch. and Lef. 12, the fund did not come to be disposable for the payment of legacies, till near forty years after the death of the testator, and yet they were held to bear interest from the year after his death, and the Chancellor says: *“*The Court there was of opinion that it was a general, settled and fixed rule, that pecuniary legacies bear interest from the expiration of twelve months, *if there should at any time be a fund for the payment of them.”*

In *Gfillon*vs. *Turnbull,*1 McC. Ch. 152, the words of the will wore as follows: “to be paid out of the income of my estate, as soon as convenient, after the expiration of one year from the time of my decease,” and the executor resisted the demand of interest on the legacy, on the ground that the *income*of the estate had not been adequate to pay the annuities and legacies, and that it would have been necessary to have sold a part of the principal of the estate to raise the money, which was contrary to the testator’s intention; the Court, however, not only recognized the will, but held, that if the different and apparently contradictory expressions of the will left the intention of the testator doubtful, the rule would apply.

The testatrix having separated a specific sum from her general estate, raises a presumption that it was to be an accumulating fund for the use of the legatee, and that interest should accrue before the event upon which it was to be given to her, and the mere designation of the sources from which it was to be derived, ought not to abridge her rights or change the rule.

I am therefore of opinion, that the legatee and her husband are entitled to interest on her legacy of one thousand dollars, from one year after the death of testatrix.

The next question is, as to the bequest to the American Bible Society of New York, and to the Missionary Soóiety of New *257York, under tbe 25th clause of the will. The executor had not found any Society that answers the description of the Missionary Society of New York, and therefore submits the question, whether the legacy be not lapsed and the distributees of the testatrix entitled to it. I think this question at present is prematurely presented ; the mere enquiry on the part of the executor, however diligent, is not of itself sufficient to deprive a legatee of the legacy — it may be a good ground on his not being able to find him to stop the interest, but before the legacy is declared lapsed, or it is deemed there is no such legatee, the facts must be judicially ascertained ; this can only be done by evidence, after the motion required by law.

It is therefore ordered and decreed, that Capt. M. S. Howe and Ann T., his wife, are entitled to the interest on the legacy of one thousand dollars, bequeathed to her by the testatrix, from one year after her death; and that it be referred to the master to ascertain and report, after publication of notice thereof, in some of the New York papers, whether there be any Society answering the description of “The Missionary Society of New York;” and that he have leave to report any special matter.

Erom so much of Chancellor Caldwell’s decree as allowed interest on Mrs. Howe’s legacy, the executor appealed.

Memminger, for Mr. and Mrs. Howe.

Porter, contra.

At June Term, 1850, the master having reported that there was no such Society in existence as the Missionary Society of Now York, his Honor Chancellor DuNKIN decreed that the American Bible Society of New York was entitled to only one-half of the bequest under the 25th clause of Mrs. Timothy’s will. Erom this decree an appeal was also taken.

At January Term, 1851, the cause was heard on both appeals. The appeal from Chancellor DüNKIN’s decree was dismissed, (see 8 Rich. Eq. 235,) and the appeal from Chancellor Caldwell’s *258decree was suspended, as appears by tbe following opinion delivei'-ed by

Dargan, Ch.

Tbe first appeal that will be considered, is that taken from tbe decree of Chancellor Caldwell, June Term, 1849. Tbe question made arises under tbe following circumstances : Ann Timothy, by her will, dated June 8, 1837, in tbe 9th clause, bequeaths as follows: “ I do leave and bequeath to Ann Timothy Cleland, daughter of my friend, Maria S. Cleland, one thousand dollars, to be placed at interest by my executors for her use, and given to her on her marriage; at her death to be given to her mother, the said Maria S. Cleland.” After giving eight pecuniary legacies, amounting in the aggregate to $9,000, she concludes the 12th clause as follows : “ All the above legacies must be paid out of the interest of my estate, or bonds, in succession, as herein stated above.”

The condition on which Ann Timothy Cleland was to receive her legacy has happened. She has intermarried with Capt. M. S. Howe, who is one of the defendants. The executors have tendered to Capt. and Mrs. Howe the legacy of one thousand dollars, but without interest; and the question of interest is the matter in controversy between these parties.

It is contended, on the part of the executors, that by a proper construction of Ann Timothy’s will, the eight first pecuniary legacies were intended to be paid only “ out of the interest of the estate or bonds” of the testatrix; that they were to be paid in the order of succession in which they were given in the different clauses of the will; and that therefore each of said legacies was only due and payable, after the expiration of such time, as the interest realized would entitle it to be paid in the order of succession prescribed in the will. Their argument, in other words, is, that this is not an interest bearing demand until it was due, and that it was' not due, or demandablo, until the executors had come into the possession of *assets,*arising from interest, to pay both this legacy and those given in the preceding clauses; which last, according to the construction of the appellants, are entitled *259to priority of payment. They farther assert, as a matter of fact, that the funds whiph, according to their construction of the will, thex testatrix has provided for the payment of this legacy, have only been realized at a particular time; from which time they are willing to account for interest. To support the construction contended for by the appellants, it would also be necessary for them to show that the facts on which it rests did actually exist. But on looking into the brief, for the purpose of adjudging the question thus made, we find there are no *data*as to the facts, by which a judgment could possibly be formed. It was assumed at the bar, that interest enough to pay this legacy could not possibly have been made until a given period, and certain unofficial Statements as to the assets, and interest bearing demands of the estate and of its debts, were alluded to, and portions of them were read.

But these were admitted to be mere private statements, not judicially before the Court. What was the amount and value of the whole estate, and the amount of the residuary estate, of what it consisted, how much the executors realized annually in the way of interest or otherwise, and what amount of debts and liabilities existed, has not been brought to the view of the Court. Under these circumstances, the Court is not disposed, at the present time, to proceed to a final judgment. Upon all the matters above named information is desired. The judgment of this Court on this appeal will be suspended for the present. And it is ordered, that it be referred to the master to enquire and report as to all the facts above mentioned, as matters on which this Court desires information ; each party to have the right of filing exceptions to the master’s report, and bringing the same to a hearing before the Circuit Court.

JOHNSTON, DüNKIN and WaRduaw, CC., concurred.

In obedience to the directions contained in the above opinion, the master made his report, in which he stated that Mrs. Ann Timothy died about March 1, 1841; that her whole estate con*260sisted of bonds, amounting in the aggregate, at the time of her death, to $29,629.85, besides interest then due to the amount $1,802.99; that her debts amounted to $829.04; that five pecuniary legacies, amounting to $7,000, were given by the will before the legacy of $1,000 to Miss Cleland (Mrs. Howe;) and that if the legacies were payable in their order out of interest realized by the executors, Miss Cleland’s legacy was not payable ■until March 1, 1847.

At this Term, (January Term, 1852,) the Court of Appeals announced its final judgment as follows:

*Per Curiam.*

The Court has considered the appeal taken from the decree of Chancellor Caldwell in this case, and concurs in the said decree ; and it is ordered that the same be affirmed, and the appeal dismissed.

Johnston, DüNKIN, Daroan and WARDLAW, CO., concurring.

*Appeal dismissed.*