Clark's Executors v. Wallace

The opinion of the court was delivered, by Read, J. — The cases of Magoffin v. Patton, 4 Rawle 119, decided [84] by Judge Kennedy, which was an action at common law; of Corbin v. Wilson, 2 Ashmead 178, decided by that very learned judge, President King, which was a proceeding in equity; and of Seibert’s Appeal, decided by Chief Justice Lewis, which was a proceeding in the Orphans’ Court and Common Pleas, have settled the law of the case before us in strict conformity to the established English rule. Where a legatee is a child of the testator, and a minor, incapable of supporting himself, or one to whom the testator has placed himself in loco parentis, and no special provision is made for the maintenance of the legatee, interest will be allowed on the legacy, although not payable until a future time, as upon the legatee’s attaining full age. For the purpose of maintaining the legatee, interest must be paid on the legacy, whether it be particular and vested, or particular and contingent, or whether it be residuary and vested, or contingent. “ If,” says Judge Lewis, in Seibert’s Appeal, 7 Harris 56, “ there is anything in the argument in favour of awarding interest on a legacy to a child, resting upon the presumption that a parent did not intend his children should starve, the presumption holds with equal strength, where the parent is dead, and the grandchildren are in the will substituted to the legacy previously given to the parent for life. If a testator, by benevolent manifestations, may put himself in loco parentis, so as to entitle a stranger to maintenance, much slighter circumstances will bring the case of a grandchild within the rule. Indeed, this may always be presumed where, as in the case under consideration, the legacy is given to the child only for life, and upon its death the grandchildren are substituted under the express direction in the will to receive the legacy, the income of which had been previously given to their parent.” The case of Corbin v. Wilson was a very strong exemplification of the power of the equitable doctrine of maintenance, for the annuity given to the testator’s daughter was to be applied to the sole maintenance of herself and the education of her children, with a further provision as to her and her children, with others residing in the testator’s dwelling-house in Philadelphia, if she was disposed to do so. The father of the children was living, a-nd the allegation was that his pecuniary abilities were limited, and were altogether inadequate to the maintenance and education of his children and the support of his family. The court made an allowance to the father, Francis P. Corbin, for their past maintenance, of $6000, and for the future maintenance and education of their three children, of $3000 annually, which sum was very largely increased by subsequent decrees of the court as the minors advanced in years. The estate, it is true, was a very large one, consisting of real and personal estate in Pennsylvania and Georgia, which, upon the final distribution and [85] payment to the three grandchildren, under the terms of the will, was valued at near one million of dollars. The case was very stoutly contested by the present Judge Cadwalader and myself, but under our advice the executors of Mr. Hamilton acquiesced in the decision of the Court of Common Pleas without carrying it to the Supreme Court, a course entirely justified by the decision in Seibert’s Appeal fourteen years afterwards. In the case before us, it appears that William Clark died in November 1851, having first made his last will and testament, dated the 28th October in the same year, of which he appointed his two sons, William and Charles A. Clark, executors. In his will there is the following clause: “ I give and bequeath to my daughter Mary, now intermarried with Justus W. Eshleman, the sum of $3000, which said sum is to be and remain a lien on my real estate during her natural life, and the interest accruing thereon, to be paid to her annually during her said life; which said interest is to be for her sole and separate use, and not subject to the control of her said husband, nor liable for his debts, either now or hereafter; said legacy to remain a lien upon my real estate during her life, and until her children shall become of lawful age, and at her death the said sum of $3000 to be equally divided amongst her children, if they shall have arrived at the age of twenty-one; but should my daughter die before her children shall have arrived at lawful age, the share that they shall be entitled to shall not be paid until they arrive at lawful age.” “ Item. It is my will that the money arising from the sale of the land directed to be sold by my executors, and all other moneys arising out of the sale of my personal property and other effects, be applied to the payment of'my debts as aforesaid, and after the payment thereof, then the legacies and bequests hereinbefore mentioned shall commence, bearing interest from that time, and be payable as before directed; said legacies and interest thereon, and the provision for my wife and daughter, Elizabeth Jane as aforesaid, are to be paid and borne in equal proportions by my sons, William and Charles Alexander.” These are the only portions of the will appearing on either paper-book. The period mentioned in the last item, when the interest commenced, was the 7th February 1856, all the debts being paid by the executors by that day. William and Charles Alexander accepted the respective farms devised to them by their father, subject amongst other charges to the said legacy of $3000, and are still the owners of the said farms. Mary Eshleman died on the 22d December 1850, leaving no estate, and her husband has no property or means adequate for the proper support of their three minor children, William C., John M., and Mary Elizabeth Eshleman, who, at the time of the presentation of the petition of their [86] guardian to the Orphans’ Court, were aged respectively fourteen, eleven, and nine years. The minors have no other property except about $747, received by the guardian from the estate of James Clark, deceased. It is too clear to require argument, that this was a vested legacy in the children, payable on their respectively arriving at the age of twenty-one years, in equal portions. It is equally clear that this legacy bears interest from the 7th February 1856, and that the legacy and interest are to be paid and borne in equal proportions by William and Charles Alexander, who are personally liable, by the terms of the will, and whose farms devised to them by their father are specifically charged with the payment of the same. The Orphans’ .Court was therefore the proper tribunal to apply to, as it was a legacy charged upon real estate, and possessing equity powers could dispose of the whole question of interest and maintenance. Under the circumstances of this case we cannot but think that the court below made a very proper order, with this variation, after the word “ over,” insert the words “in equal proportions,” so as to make the decree conform to the will, which directs that the legacy and interest “are to be paid and borne in equal proportions” by his said sons, William and Charles Alexander. As it is presumed that the object of this proceeding is to determine a question of law, the fi. fa., being a joint writ, instead of separate writs, is set aside. With this variation, the decree is affirmed.