#### *Mary A. E. Allen, by her guardian, vs. David Crosland et al.*

Testator bequeathed as follows. “I give to my daughter Mary, at her marriage, or when she attains the full age of twenty-one years, two-thirds of my personal estate. But should she die before she marries, or attains tho iull age of twenty-one years, then, and in that case, I give” the same to my wife, &c. *Held*that, as long as Mary remained unmarried and under age, her guardian was not entitled to receive from the executor of the testator tho *corpus*of the said legacy, and, consequently, that the sureties *to his*guardianship bond were not liable therefor, the same having been wrongfully paid over to him ; but that, Mary being otherwise unprovided for, he was entitled to receive interest on the said legacy, by way of maintenance, and that for such interest his sureties were liable.

As a general rule, a legacy payable at a future day, does not carry interest, until after it is payable. Whore, however, the legacy is to *a child*who is otherwise unprovided for, it carries interest immediately.

*Before*Johnson, Ch. *at Marion,*

*February,*1845.

*The Chancellor.*The late Matthew Allen, who died in 1834, by his last will and testament gave to his widow one-third part *69of all his estate, real and personal; and the following are the terms in which he gives the remaining two-thirds to the complainant, his only child, viz‘Item, I give, devise and bequeath to my dearly beloved daughter, Mary Ann Elizabeth, at *her marriage, or when she attains the full age of twenty-one years,*two-thirds of my estate, both real and personal, to her and her heirs and assigns forever. But should my said beloved daughter, Mary Ann Elizabeth, die before she marries or attains the full age of twenty-one years aforesaid, then and in that case I give, devise and bequeath to my beloved wife, Eliza Ann Allen, one moiety of the said two-thirds of my estate aforesaid, her heirs and assigns forever ; and the other remaining moiety of the said' two-thirds, I give, devise and bequeath to the surviving children of my brother Robert Allen,” <fec.; and he goes on to authorize his executors to sell his lands and negroes, and to put the proceeds at interest, or to hire out the negroes, or work them on the plantation, as they might think most conducive to the interest of the estate. He appointed John R. Easterling and Thomas Me Connell his executors. McConnell alone qualified, and assumed the burthen of the administration ; and in the execution of the powers vested in him by the will, he sold the whole real and personal estate of the testator, in January, 1835, except a plantation on Pee Dee River, called Hasty Point, which the testator acquired after the execution of the will, and which was not, therefore, subject to its dispositions. Some time after, the testator’s widow intermarried with one Cook, who died shortly after; — she after-wards intermarried with the defendant, David Crosland, who, at the January term, 1839, of the court of equity, for Georgetown district, was appointed guardian in chief of the complainant. On the 4th of March, 1839, he entered into bond to the commissioner of that court, in the penalty of $16,000, conditioned for the faithful discharge of his duties, with the defendants, Samuel Sparks and John W. Bowyer, the intestate of the defendant, Jemima Bowyer, as sureties. On the 22d of March, of the same year, administration *de bonis non,*with the will annexed, of the estate of the testator, Allen, (McConnell, his executor, having died some time before,) ivas granted to the defendant, Crosland, who thereupon entered into bond to the ordinary, in the penalty of $6000, for the faithful discharge of that duty, with Halden W. Lyles and P. E. Crosland, as sureties. At the foot of that bond are the following memoranda, viz: “I have understood that Mr. Crosland has already given bond to the commissioner *70iu equity, for that part of the estate of Matthew Allen which he did not inherit by intermarriage with the widow, and if so the above bond is one of mere matter of form.” — Signed “E. Waterman, Ordinary G. D.” “I hold Mr. Crosland’s bond for sixteen thousand dollars, as guardian of Mary Allen.” Signed “J. W. Coachman, Commissioner in Equity.” McConnell, the executor of the testator, Allen, had, as before stated, died some time before these proceedings were had, having, it is said, paid all the debts of his testator. By his will he had appointed one E. H. Miller his executor, who, after the defendant, Crosland, had been so appointed guardian of the complainant, and administrator *de bouis non*of the estate of the testator, Allen, transferred and delivered to him a large amount (say $10,993 55, or thereabouts) of the assets of that estate, consisting of bonds, notes, and other securities, for money arising from the sales of the testator’s estate, made by McConnell, the executor, in his life time.

In 1836, McConnell, the executor of testator, Allen, supposing that he was authorized by the will, entered into an agreement to sell the Hasty Point plantation, to one Davison McDowell, at $6,500, but on being advised that he had no such power, the testator having acquired the land after the execution of the will, he refused to execute the agreement, and in 1837 McDowell filed a bill for a specific performance, and such proceedings were had thereon, that at January term, 1837, for Georgetown district, an order of the court was made in the said cause, entitled Davidson McDowell vs. Thomas McConnell, executor of Allen, and Eliza Ann Cook, (the testator’s widow,) and Mary Ann Elizabeth Allen, (his daughter,) that the said agreement should be confirmed; and, as the means of carrying it into execution, it was ordered that on the payment by the complainant of the sum of two thousand dollars in cash, and the ex ecution of his bond' for the balance contracted to be paid, etc., the commissioner of the court should execute titles to him for the said plantation ; and that he should pay to the defendant, Eliza Ann Cook, one-third of the amount, and retain the remaining two thirds, subject to the further order of the court. McDowell, on his part, complied with the terms of the order, and at January term, 1840, an order was made, on the petition of the defendant, Crosland, who had before married the widow, that the commissioner should turn over to him all the funds in his hands belonging to the estate of the testator, Matthew Allen. In pursuance of this order, the commissioner delivered to him Me Dowell’s bond for $4,500, and paid to *71him $605, the amount of interest which had been received on it, *being,*as *it is*represented, all the funds of *the*estate that were in his hands.

At the March term of the court, for Georgetown district, in 1844, the guardianship of the complainant granted to defendant, Orosland, was on her petition revoked, and her present guardian substituted in his place. And the administration *de bonis non,*with the will of the testator annexed, w.as also revoked in the court of ordinary, on the 15th of December, 1844. The fact is not distinctly stated in the bill, but it was admitted on the part of the defendant at the hearing, that Orosland was insolvent, and unable to reimburse the funds of the estate which he had wasted, and the prayer of the bill is, that Orosland may account, and that the defendants may pay what may be found due to the complainants.

The defendant, Orosland, has not answered. The other defendants demurred, on the grounds that they are not liable until the full extent of their principal’s defalcation, as guardian, had been ascertained, by the judgment of the court, and that then the complainant’s remedy against them was by action at law, on the guardianship bond, and insist that they are improperly joined in this bill; but at the hearing the demurrer was withdrawn, and they went to trial on their answer, on which they insist that they are not liable for the assets which their principal, Orosland, received from E. H. Miller, the executor of McConnell, who was the executor of the testator, Allen, because they were received in his right as administrator *de bonis non*of that estate, and not in his character as guardian of the complainant.

Several documents were offered in evidence, indicative of the character in which Orosland acted, in receiving the assets of the estate of his testator from Miller, whether as guardian or administrator ; but I have not thought it worth while to refer to them, because the act of receiving must be referred to his authority to receive, however he might think proper to characterize himself, whether as guardian or administrator, or any thing else — the case itself depends on a few facts about which there is no controversy.

The counsel for the defendants, Sparks and Bowyer, concedes, and there can be no question about it, that they are liable for the amount which Orosland received for the complainant, his ward, from the commissioner in Equity, on account of the sales of Has*72ty point, and I shall not again recur to that matter. The only remaining question is, whether they are also liable for the amount received by him from Miller, the executor of McConnell, and that depends on the question whether he was entitled to receive it in the character of guardian.

The whole of the estate of the testator embraced in his will had been sold by the executor, McConnell, and was in his hands in the form of money or bonds and notes payable to himself. The whole body of it had been changed, and there was nothing left of the original *corpus.*It had assumed entirely the form of a debt due by the executor to the persons entitled to receive it; and if Crosland’s ward was entitled to receive it at the time of the payment of the money, or the delivery of the securities to him, the payment was good — no administration *de bonis*non, was necessary, as he was entitled to receive it in the character of guardian, and of course the sureties to the guardianship bond are liable. Such is, I think, the necessary conclusion from the principle laid down in *Burleston vs. Brown,*(a) decided in the Court of Appeals at the late sittings in Charleston. But if all the trusts confided by the testator to his executor had not been executed, no one except he who was duly authorized, could carry them into execution, and until that was done the administration was not complete. Now by the terms of this will, the bequest or devise is to Crosland’s ward “at her marriage, or when she shall attain the full age of twenty-one years.” She is yet single, and has not attained the age of twenty-one; and if she is not now entitled to receive the legacy, Crosland had no right to receive it as her guardian, and consequently the sureties to his guardianship bond are not liable.

Without entering upon the inquiry whether this is a vested or contingent legacy, it is too clear to admit of any question; the possession and enjoyment was to be postponed until she married, or attained the age of twenty-one years, and I cannot find terms in which to express the idea more clearly than those used in the will. “I give, devise and bequeath to my beloved daughter, Mary Ann Elizabeth, *at her*marriage, or when she attains the full age of twenty-one years,” <fec., indicating, as strongly as language can do, without employing negative words, that she was not to have the legacy until one of these events happened. But it is equally clear that this legacy is altogether contingent, and *73dependent on the happening of one of the contingencies. The rule is, that if time enters into the substance of the legacy, it is necessarily contingent, and I need not add to what I have already said to show that it does here.

The effect of the memoranda, made on the administration bond, is not involved in this case. They cannot, however, be otherwise regarded than as the extra judicial opinion of the ordinary upon a matter of law, and form no part of the bond itself.

It is ordered and decreed that the defendants do account before the commissioner for the. amount received by defendant, Crosland, from the commissioner in equity, for Georgetown district, on account of the sale of Hasty Point, in^behalf of the complainant’s ward, and that in all other respects the bill be dismissed. The defendants to pay the costs.

The complainant appealed, on the following grounds :

1st. That complainant’s interest in the legacy in question, is a vested and not a contingent interest, and its receipt by the defendant, Crosland, was in his capacity as guardian, and not as administrator *cle bonis non*of the testator’s estate.

2nd. That if the Court should be of the opinion that complainant’s right to the legacy is contingent, still she became entitled to the interest thereon by way of maintenance from the death of her father, so that the defendant, Crosland, ought to be charged as guardian with such interest from the time the fund was trams» ferred to him by McConnell’s legal representative.

Munro, for the appellant.

*DargaU)*contra.

(a)

*Gray*vs. Brown, 1 Rich. 351. Qu. ?—R.

*Curia, per*Dunkin, Ch.

On the questions discussed in the decree, this Court is satisfied with the judgment of the Chancellor. The matter involved in the 2d ground of appeal was not argued at the circuit, probably because the complainant relied on his claim to the *corpus*of the legacy.

There is no doubt, however, about the principle. In *Lupton vs.*Lupton, 2 John. Ch. R. 628, Chancellor Kent says: “With respect to the question of interest, it may be proper to observe, that the general rule is, that a legacy payable at a future day, does not carry interest, until after it is payable, unless it be a legacy to a child, payable at a future day, and the child has no other provision, nor any maintenance, in the mean time, allotted by the will. If there be no such provision, the legacy carries in*74terest immediately, on the presumption that the parent must have intended that the child should, in the mean time, be maintained at his expense.” As early as *Heath vs.*Perry, 3 Atk. 101, Lord Hardwicke had held that the case of a child was an exception to the rule that a legacy carries interest only from the time it is payable; “for then,” says he, “let a testator give it how he will, either at *21*or at marriage, or *payable*at *21,*or *payable*at marriage, and the child has no other provision, the court will give interest by way of maintenance, for they will not presume the father *inofficious,*or so unnatural as to leave a child destitute.” Nor, in such case, does it seem to make any difference whether the legacy be vested, or contingent. See *Leslie vs. Leslie,*10 Eng. Cond. Ch. R. 384.

By the will of Matthew Allen he bequeathed one third of his estate to his wife, and two-thirds to his daughter (the complainant) “at her marriage, or when she attains the full age of twenty-one years.” No provision whatever is made for the maintenance of the daughter in the mean time. Under the authority given by the will, the executor, McConnell, soon after the death of the testator, sold the estate and paid the debts, holding the surplus either in money or securities. The complainant was entitled to interest on two-thirds of this surplus, certainly from January, 1835, when the sale was made. The amount of this interest, deducting any sums which McConnell, the executor, may have paid on account of the complainant, must be regarded as included in the sum paid by Miller, the administrator of Me Connell, (a) to the guardian of complainant, and he is chargeable in that capacity. He is also liable for the subsequently accruing annual interest on the amount of the complainant’s legacy thus ascertained, deducting all sums paid to, or for, her, and a reasonable allowance for her maintenance while she was maintained by the guardian.

It is ordered and decreed that the order of reference, made by the circuit court, be enlarged, and that the commissioner, in addition to the directions heretofore given, take an account of the amount due to the complainant, on the principles of this decree. In all other matters the decree of the circuit court is affirmed.

Johnston, C. concurred.

(a)

**In the circuit decree Miller is called the executor of McColmell. R,