#### *Dorcas Smith et al.*vs. *Henry Eady et al.*

A legacy to a wife Id ears interest, as other legacies do, from one year from the testator’s death; she will not he allowed interest, as children sometimes*are, for maintenance.

*Before*DeSaussure, Ch., *at*Marion, *February,*1832.

The testator, Daniel Stone, died January 9,1822, having left a will in writing, which being only attested by two witnesses, was insufficient to pass his real estate. The bill was filed by the complainants against the executors and widow of the testator, now *398Mrs. McNeil, for account and partition. The testator devised and bequeathed as follows : - To his wife two hundred acres of land, dercribing the same, and choice of bed, bedstead and furniture, choice of a horse and riding chair, one-third of his kitchen furniture, one thousand dollars .at her discretion, and at the expiration of four years, one thousand dollars more,, if she survives to that time. He also advises his executors to build her a comfortable dwelling house and outbuildings. He' also advises his executors to furnish her with" sufficient necessary provisions for the term of four years, if her *child lives from {after) his decease.*He gives her two cows and calves. The testator also lent to his daughter a negro girl named Gin, (Jenny,) and if she lives to the age of eighteen years, or marries, the slave and her- issue to be hers absolutely; if not, then the slave to be sold, and the money appropriated to the rest of his estate. The testator further advised his executors to sell part of his personal estate on a short credit, to pay his debts, and his negroes to be sold on a credit of four years, and that his lands and tenements be sold. He also advises, that after his debts are paid, the balance of the money be put to interest. He also advises, that his'daughter, then only four months old, should be put to school at a fit age, and supported decently. He provides in the same way for any posthumous child or children, and . then declares that if his daughter should arrive at eighteen years of age, or marry, he gives and bequeaths to her, or them, all his estate, after giving Leonard White three hundred dollars in schooling, if he lived. If his daughter or posthumous child or children should die before marrying or arriving at the age of nineteen years, he advises, that seven years interest of the money be put to the use of the schooling of the poor children of this *inhabitance,*the residue of the money to be equally divided between his wife, if she is surviving, and his father’s and mother’s heirs at law. From the Commissioner’s report it appeared, that the daughter of the testator died a few months after his death; that his wife had no posthumous child; that she had been since twice married; that Leonard *399White was living, and about fifteen or sixteen years of age ; •and the Commissioner, in making up his report on the accounts of the executors, allowed the testator’s wife interest on her first legacy of one thousand dollars from April 15, 1822.

To this report the plaintiffs excepted, on the ground^ that interest should have been allowed only from January 9, 1823, one year from testator’s death.

The presiding Chancellor overruled the exception, and the complainants appealed.

Moses, for appellants.

*Holt, Ervin, Graham,*contra.

The opinion of the Court, was delivered by

Harper, Ch.

The rule of law is, that interest is to be allowed on a legacy from the time it is payable, and if no time of payment is specified, it is at the end of a year after the testator’s death. An exception has been made in some cases, where it appeared that the legacy was intended for the maintenance of children, and in the case of *Crickett*vs. *Dolby, 3*Ves. 16, Lord Alvanley supposes that a wife would certainly come under the same exception. He adds, however, *“*I do not find it in the books. It can hardly ever happen that a wife has not some other provision ; and that may make a difference in the case of a child.” The point was not before him, and in *Stent*vs. *Robinson,*12 Ves. 461, where such an application was made, the Master of the Rolls dismissed the petition, observing that there was nothing to support it but that dictum of Lord Alvanley; and no authority to support that, no withstandingthe numerous instances of legacies to wives. On the authority Of that case, and on the general rule of law, the motion must-be granted.

JohNson and O’Neall, JJ., concurred!

*Motion granted.*