#### *A. R. and Sarah Chisolm*vs. *Jane M. Chisolm and others.*

Infant having an absolute estate of about $16,000, and also an estate of about twice that amount contingent upon his attaining the age of twenty-one, or marrying : ordered that maintenance be allowed him out of his absolute estate.

Allowance made for maintenance is subject to the future control of the Court, and may be altered with, the varying circumstances of the estate.

*Before*Wardlaw, Ch., *at*Charleston, *February,*1851.

Wardlaw, Ch. Alexander Robert Chisolm, by his will, dated May 29, 1827, devised a plantation and negroes to his son, Alexander R. Chisolm, for life, and, upon his death, should he die leaving issue at the time of Ms death, to such issue as should attain the age of twenty-one years, or at the day of marriage, equally and absolutely, with survivorship among them; and should his son die leaving issue, as aforesaid, and also a widow, then that the widow, during widowhood, should receive a reasonable support out of said estate, and he appointed his executors trustees for the children and widow of his said son, for the purpose of carrying this and other provisions of his will in the nature of trusts into full and entire effect; but should his said son die leaving no issue at the time of his death, or leaving issue, they should become extinct before attaining the age of twenty-one years, or before marriage, and' also leaving a widow, then that the property given to his said son should revert back, and become the property of *267bis other sons, who should be living at the death of his said son, subject to the same conditions and restrictions imposed on the said property in the devise and bequest of the same to his said son, the said surviving sons paying to the widow of their deceased brother $5,000 in full discharge of her claims upon the estate. The said testator, by his said will, gave certain lands and negroes to each of his other three sons, John M., Edward N. and Robert, for life, subject to all the provisions and conditions imposed on the property given to their brother, Alexander R., and also gave to each of his four sons one-fourth of the residue of his estate in fee. Of the said will, George Chisolm, Thomas Smith, Alexander R. Chisolm, and John M. Chisolm, were appointed executors. The testator died June, 1827, leaving his said four sons surviving him. Of the executors, Thomas Smith died, without having ever qualified; George Chisolm qualified, and soon afterwards died ; the other two qualified and administered the estate by paying the debts and delivering the legacies. Soon afterwards the son, Alexander R., died without having been married, whereby his interests devolved upon his surviving brothers.

Edward N. Chisolm and Mary E. Hazard contracted marriage in 1831, and in contemplation thereof conveyed nine negroes to Thomas E. Screven, in trust, for the use of both during their joint lives, then for the use of the survivor for life, and upon the death of the survivor for the issue of the marriage in fee. Edward N. Chisolm died September 1, 1836, leaving the said Mary E., his widow, and the plaintiffs, A. R. and Sarah, his children, and leaving of force his will, dated Aixgust 19, 1836, whereby he devised his whole estate, real and personal, to his widowq and whereof the said Thomas E. Screven was the acting executor.

John M. Chisolm, surviving executor of Alexander Robert Chisolm’s will and trustee of the estates devised, applied by petition to this Court for instruction as to the extent of the provision which should be made for the reasonable support of the said Mary E. out of the estate given in trust; and at April sittings, 1838, for Beaufort district, it was ordered that the said John M. Chisolm, *268executor, pay to the said Mary E. Chisolm, out of the trust property of her deceased husband, Edward N. Chisolm, the annual sum of two thousand dollars during her widowhood, for her personal use, and five hundred dollars annually for the maintenance of her two children, until the further order of the Court.

Mary E. Chisolm died in November, 1838, intestate, leaving the plaintiffs the distributees of her estate, the administration of which was committed to the said Thomas E. Screven.

The separate estates of Edward N. Chisolm and Mary E. Chisolm and the estate embraced in their marriage settlement, have all been sold by the orders of the Court, and they are now in the hands of the said Thomas E. Screven, in the form of bonds bearing interest, to the aggregate value, as stated in his answer, of $33,004.20, to which the plaintiffs are absolutely entitled. The estate to which the plaintiffs will be entitled, under the will of their grand-father, Alexander Bobert Chisolm, upon thoir marriage or attainment of full age, is estimated to be worth about twice as much more. So that the estate of each plaintiff, vested and contingent, is worth about $50,000.

John M. Chisolm was appointed guardian of *the*persons of the plaintiffs, at January sittings, 1839, of this Court, for Beaufort district; he was also provisionally appointed guardian of thoir estates, but did not comply with the condition of the order in this respect. The plaintiffs, after the death of their mother, went to reside in the family of thoir maternal aunt, the wife of Horace "Waldo, their next friend in this suit, in the city of New York; and they continue to reside there. The sum allowed, or assumed to be allowed, by the order of April, 1838, for the maintenance of the plaintiffs, has been found inadequate, and the said Horace Waldo is in advance for their support. The plaintiff, A. B., is now in his seventeenth year of age, and the plaintiff, Sarah, in her fifteenth year.

John M. Chisolm died intestate, July 5, 1849, leaving a widow, Jane M., who has administered upon his estate, and five children, *269who are infants, namely, John M., Alfred, Jane, Susan and Laurens.

The trust estate of Edward N. Chisolm, while under the management of the said John M. Chisolm, yielded little income, insomuch that he was in advance to the said trust estate at the time of his death.

Robert Chisolm, only surviving son of Alexander Robert Chisolm, was appointed by this Court, sitting in Charleston, February, 1850, manager of the trust estate of Edward N. Chisolm, and in June, 1850, trustee of said estate.

This bill is filed by the two infant children of Edward N. Chisolm against Thomas E. Screven, Robert Chisolm, Jane M. Chisolm, and the children of John M. Chisolm; it prays that the advances made by John M. Chisolm and Horace Waldo may be reimbursed, and that additional sums maybe allowed to the plaintiffs for their maintenance, past and future. The master reports that the debt of the trust estate of Edward N. Chisolm to the estate of John M. Chisolm amounts to $2,007.69. That there are to the credit of the trust estate, in the hands of James H. Ladson & Co., factors, $3,102.38, and in the hands of Robert Chisolm, as manager and trustee, $1,026.57; and the master recommends the increase of maintenance to the plaintiffs hereinafter ordered. All the parties seem agreed that the main purposes of the bill should be effected; and the only question seriously litigated, is, whether the allowance for the maintenance of the plaintiffs should be defrayed out of the estate to which they are absolutely entitled, or out of the trust estate, which will belong to them if they marry or reach maturity. If the latter were the only fund from which the maintenance could bo provided, the decision might be embarrassing, but in the actual state of the facts the course of judgment is plain.

A legacy, payable at a future day, does not bear interest before default in the payment, unless the intention of the testator to give interest, as an incident to the legacy can be inferred from the whole will, or unless it be a legacy from a father to an infant child, who has no other provision, and to whom the father *270has given nothing in the will" for maintenance. In such case of father and child, interest from the death of the testator is given for the maintenance of the child, in the absence of express direction on the subject, or even against direction for the accumulation of interest until the day when the legacy is payable, and whether the legacy be vested or contingent. *Allen*vs. *Crossland,*2 Rich. Eq. 8. This doctrine is founded on the prin-ciplo, that as the father is under a legal obligation to provide for the maintenance of his infant child, the Court will not presume him to be inofficious and unnatural, but will infer that by such legacy he intends, in fulfillment of his duty, to afford to his child the means of support. *Heath*vs. *Perry,*3 Atk., 101. The same rule of construction might be applied to the case of a grandfather’s legacy, if by the death of the father and the destitution of the grand-children, he should be bound to provide for their maintenance, or to the case of any testator, who, by the terms of his will, puts himself *in loco parentis*towards the objects of his bounty. But, in the absence of such circumstance, the rule does not extend to adult children. *Lowndes*vs. *Lowndes,*15 Ves. 301; *Raven*vs. *Waite,*1 Swan. 553; nor to a natural child, Ib.; nor to a wife; *Stent*vs. *Robinson,*12 Ves. 461; nor to nephews ; *Crickett*vs. *Dolby,*3 Ves. 10; nor to grand-children; *Houghton*vs. *Harrison,*2 Atk. 329; *Butler*vs. *Freeman, 3*Atk. 58 ; *Palmer*vs. *Mason,*1 Atk. 505; *Descrambes*vs. *Tomkins,*1 Cox, 233; *Ellis*vs. *Ellis,*1 Sch. and Lef. 5; *Lupton vs. Lupton,*2 John. Ch. 628 ; nor even to infant children, if the father has provided in his will any other maintenance, however small, and however large may be the ultimate legacy. *Ellis*vs. *Ellis.*Maintenance out of the interest of a legacy, payable at a future day, by a testator, not in *loco parentis,*to a class of children not otherwise provided for, if there was equality in the portion of the children, and in their chance of taking by survivorship the whole, has been sometimes ordered by a Court of Equity, where the Court could have before it all the persons entitled to the fund, so as to make to each a compensation in immediate maintenance for *271tbe diminution of the fund to which he may be ultimately entitled ; but this relief cannot be afforded if there be a gift over, or any other interest, that upon any other contingency would take effect, at least, without the consent of the remainder-men.

This would be in effect giving the property of one person for the maintenance of another. In *ex parte Kebble,*11 Ves. 604, Lord Eldon refused maintenance, where the estate was bequeathed to infants, with survivorship among them in case of the death of any of them under twenty-one ; but there was a limitation over to others in case of the death of all the infantjjumder twenty-one. In *Marshall*vs. *Holloway,*2 Swan. 436, the same eminment Judge, discussing this doctrine of mainten*ic€®3jj',|ii^-^mm^e of compensation, says : “ if the will eontafgssuccessive limnatijpns under which persons not in being may not sufficient that all the parties then livife^nresumptively entitled are before the Court, for none of theTBd’ties eventually entitled to the enjoyments of the property. Again, in *Errat*vs. *Barlow, 14*Ves. 202, where the property was given to children at twenty-one, and limited to others if the children should die under twenty-one, Lord Eldon says: *“*tho result is that if the chance of surviving is equal among all, and no other interest, that upon any contingency would take effect, will be defeated, maintenance shall be allowed out of the interest; but it is impossible to give it where in any event under the operation and construction of the will that interest may possibly belong to others.” In *Lomax*vs. *Lomax,*11 Ves. 48, maintenance out of the interest of a legacy to the children of testator’s living daughter, was refused because an unborn child might eventually take the whole. In *Errington*vs. *Chapman,*12 Ves. 20, legacies were given *to*two grand-children at twenty-one, with interest from the end of a year after testator’s death, and with survivorship amongst them, but because there was a gift over, in case both died under twenty-, one without issue, Sir Wm. Grant refused maintenance, although the father was not of ability to maintain the infants. V. C. Shadwell, in *Turner*vs. *Turner,*4 Sim. 430, 6 E. C. C. R. 198, *272pursued the same course, because *the children*of such of the grand-children as might die under twenty-one had a contingent interest. The - decisions are not altogether uniform as to the necessity of calling before the Court all the persons who may be beneficially interested in such legacies, but the great weight of authority is against the allowance of maintenance, where this cannot be done.

In the case before us, we cannot regard the testator, Alexander Robert Chisolm, as putting himself in *loco parentis*towards grandchildren, who might never come into *existence,*especially when he made ample provision, by absolute bequests, for their living father. The only direction of the will from which the jtarental anxiety of the testator towards grand-children is inferred, is the appointment of trustees for them; but that arrangement was adopted only to preserve the contingent remainders, in case the father died during the infancy 'of their children. One cannot be under parental obligation to posterity which is possible only, and not actual.

It seems equally impracticable here to give maintenance to the plaintiffs out of the trust estate, on the principle of compensation. The plaintiffs have other estates from which they may bo maintained. The children of John M. Chisolm are infants, and incapable of bartering away their contingent interest in the fund. Unborn children of Robert Chisolm, who cannot be called before the Court, may be eventually entitled to the whole estate; and the Court cannot give away their property to others.

In opposition to this conclusion, it is urged that the point was adjudged by the order of April, 1838. But that order provided only for the reasonable support of the mother of the plaintiffs during her widowhood, in conformity to the will; and the fact that she had two children was properly taken into consideration in fixing the amount of her allowance. I am not disposed to scan curiously the provisions of that order, so far as it may have been acted upon by the parties; but it would be difficult to maintain that it had any legal operation after the death of Mary E. Chisolm. At all events, when that order was made, the plaintiffs were not *273entitled to the enjoyment of any estate .whatsoever; and it is pushing the argument *ad vericun'diam*extremely, to urge me to ' enlarge and apply an ordei* of my predecessors under a very dif■ferent state of facts.

It is ordered and decreed, that the report of Master Gray be confirmed, and. that the defendant, Jane M. Chisolm, administra-trix of John M. Chisolm, be paid the-sum of $2,007.69, with interest from June 19, 1848, for the advances of her intestate to the trust estate of E. N. Chisolm, out of the balance in the hands of the factors, James H. Ladson & Co.

It is further ordered and decreed, that the advances of Horace Waldo to the plaintiffs be repaid to- him, so far as they may be covered by an additional allowance of. $500 a year hereby made for the maintenance of plaintiffs, from, the death of John M. Chisolm to the first of January last, out of the estate of the plaintiffs in the hands of the defendant, Thomas E. Screven.

' It is further ordered and decreed, that for this year commencing first of January last, and hereafter, so long as the plaintiffs reside with H. Waldo, their next friend, and until otherwise ordered, the said H. Waldo do receive for the maintenance of plaintiffs? at the rate of one thousand dollars a year for each of them, payable semi-annually in advance, the allowance for the first half of this year immediately after this decree, and subsequent allowances in July and January, out of the.-.est.ate of plaintiffs in the hands of Thomas E. Screven, defendant, who is hereby ordered to pay the same.

It is further ordered and decreed, that the defendant, Robert Chisolm, proceed to invest, conformably to the standing order of the Court of Appeals, any balances in ;his hands, or in the hands of James H. Ladson & Co., belonging..to the trust estate of E. N. Chisolm, or which may hereafter accrue, to. await the further order off this Court.

As there is no proof in the cause that guardians have been appointed for the persons or estates of the plaintiffs since the death of John M. Chisolm, the cause is retained with leave to any of the *274parties, upon proper notice to tbe solicitors of the other parties, to move for a reference on that subject, or to take such other proceedings in the matter as they may advise.

The costs and expenses of the plaintiffs, as between solicitor and client, and the costs of all the defendants, except Thomas E. Screven, to be paid out of any funds in the hands of Robert Chisolm, as manager or trustee. The costs of the defendant, Thomas E. Screven, to be paid out of the estates of the plaintiffs in his hands.

The defendant, Thomas E. Screven, appealed, on the grounds :

1. Because his Honor decreed, that an allowance of “ one thousand dollars for each, payable somi-annually, in advance, for the maintenance in future of the plaintiffs, A. R. and Sarah Chisolm, during their minority, should be paid out of the estate in his hands.” Whereas, it it is respectfully submitted, that the estate in his hands is the estate of their deceased mother, Mary E. Chisolm, safely and securely invested in bonds, bearing interest, payable annually, *not semi-annually ;*and it is impracticable and inequitable to collect and re-invest the *corpus*of said estate to provide for the exigency of the decree in this respect, and to require the payment of interest, semi-annually, contrary to the usage'of the country, which would occasion frequent and serious losses to the said estate, by detention of its funds from time to time, to secure suitable investments, and the punctual payment of the allowance ordered.

2. Because the last will and testament of the grandfather of the said plaintiffs, Alexander R. Chisolm, deceased, charges the estate, consisting of lands on Coosaw Island; and the negro slaves, after the decease of the life-tenant, his son, Edward Neuf-ville Chisolm, deceased, with the maintenance and education of the said plaintiffs, the remainder-men, during their minority, which provision of the said testator, this honorable Court has hitherto adopted as its guide, and this defendant respectfully submits that no sufficient cause is assigned why the said entailed estate should not continue the sum decreed for the maintenance annually of the said plaintiffs, as heretofore charged.

*2753. Because the defendant, Thomas E. Screven, has no funds in his hands'to pay the balances decreed to be due and owing to the said Horace WUdo, unless he is permitted to encroach upon the *corpus*of the estate, already invested; whereas it is submitted, that such encroachment is contrary to the practice and policy of the Court.

4. Because the smaller estate in the hands of defendant is charged with the payment of a sum annually, which, under the most favorable circumstances, it could not fully pay; whereas the larger and more profitable estate is not charged at all, and its pro-ceeds suffered to accumulate in the hands of Robert Chisolm, without giving security for said estate or its proceeds.

5. Because this defendant received no notice of any *reference*before the master in Charleston, at which he would have been represented; therefore the decree of his'Honor occasions surprise and injustice to this defendant.

*Screven,*Martin, for appellant.

*Memminger, Petigru,*contra.

*Per Quriam.*

We concur in the decree. It is a mistake to suppose that the allowance made for maintenance is permanent or unalterable. Upon a proper showing," in a proper proceeding, it may be altered with the varying circumstances of the estate. It is subject therefore to the future control of the Court. It is ordered that the decree be affirmed, and the appeal dismissed.

JOHNSTON, DuNKiN, DAR&AN and WaRDLAW, CC., concurring.

*Appeal dismissed.*