Koon's Appeal

Mr. Justice Green delivered the opinion of the court, The legacy of ten thousand dollars to the appellee was absolute, without any condition as to its payment, and no time of payment was expressed in the will which gave it. Literally', the case, as to the question of interest, comes directly within the words of the Act of 24th February', 1834, § 5Í, which provides that, “Legacies, if no time be limited for the payment thereof shall, in all cases, be deemed to be due and payable at the expiration of one year from the death of the testator.” This legislation supplies a testamentary intent and hence where it is claimed that a money' legacy shall not bear interest from the expiration of one y'ear after the testator’s death, the contention must be supported by a clear evidence of an intent contrary' to the act to be found in the will of the [629] testator. This doctrine was long ago asserted, and has ever since been followed bv this court. Thus, in the case of Huston’s Appeal, 9 Watts, 472, we said “the general rule of giving interest to the legatee from the expiration of the year, is not to be extended or converted upon slight inferences of intention, nor will it yield to the impossibility of getting in the estate so as to pay the legacy within the year allowed for that purpose. And even though the legacy is to come out of a part of the testator’s estate which can not be recovered for a long time after the year, and the testator directs the legacy to be paid when the money which is to constitute it can be recovered, still the payment of interest, if practicable, or at least the computation of it, will commence from the end of the year after the testator’s decease,” citing Wood v. Penoyre, 13 Ves., Jun., 325. The case cited was a very well and carefully considered case, and is sustained by kindred authorities. The Master of the Rolls having said that his first impression was that the words “ when the same shall be recovered.” postponed the time of payment, and consequently the right to interest until the mortgage debt, out of which the legacies were payable, should have been actually received and got in, declared that a further examination of the cases had changed his mind, and he stated his ultimate conclusion thus : “ Whenever legacies are given out of personal estate, consisting of outstanding securities, those legacies can not be actually paid until the money due upon sucb securities is actually got in : but by a rule that has been adopted for the sake of general convenience, this court holds the personal estate to be reduced into "possession within a year after the death of the testator. Upon that ground interest is payable upon legacies from that time unless some other period is fixed by the will. Actual payment may in many instances be impracticable witbin that time ; yet in legal contemplation the right to payment exists and carries with it the right to interest until actual payment.” The rule of general convenience thus stated is with a mandatory statute rule by the Act of 1834. The reasons for its adoption do not in England, and can not with us, prevent its application to a given case merely because they do not happen to concur with the facts of such case. Hence, we bold that the direction of the statute must prevail unless there is a clearly expressed contrary intent. In the present case there is no such contrary intent actually expressed. The injunction of the statute is peremptory, and it is founded upon the one fact only that no time is limited for the payment of the legacy. While we do not say that the mere absence of a limitation of the time of payment shall not of itself alone, regardless of the language of the gift and of all the circumstances [630] attending a given ease, suffice to bring the statute into application, we feel bound to say that the reason for not applying it must be of the clearest and most convincing character. There must be language or circumstances apparent upon the face of the will showing that the testator could not have intended the legacy to be payable at the end of the year. This was the case in Earle v. Bellingham, 24 Beav. 448, where the fund out of which alone the legacies were to be paid did not come into existence for the purposes of the legacies until after the death of the life tenant. Substantially the same reason existed in Wheeler v. Ruthven, 76 N. Y., 428, and in Trippe v. Frazier, 4 H. & J., 446. In the case of Lord v. Lord, L. R., 2 Chan. Appeal, 782, the Master of the Rolls fully admitted the principle that a legacy bears interest from the end of the year though payable in the future, and that in the case he was considering the legacy would have borne interest if it had been given directly, payable when the litigation was over, based his decision entirely upon the ground that the legacy was given by way of a trust, and that no trust arose or could arise until after the mortgage was collected. In the case at bar it was not even the fact that the legacy of the appellee was payable by the terms of the will out of the trust funds in the hands of the Pennsylvania Co. etc., though under the decisions, if they had been so paj^able, that circumstance would not alone have sufficed to prevent .the application of the statute. In reality those funds constituted the chief, though not the only, source of the means for paying the legacy, but the gift of the legacy was absolute, and without condition that it should come from that source. Had there .been other estate sufficient for the purpose, the existence or the non-existence, of the trust funds, would have been irrelevant in fact, as -well as in theory. The circumstance that they were essential to the full liquidation of the legacy is adventitious only, and not vitally essential to the right of the legatee to have the legacy. The surplus of the trust funds not needed for the trust comes to the executors as part of the residue of the estate, and is only made applicable to the payment of the appellee’s legacy by the residuary clause. But the legacy itself was completely given by the preceding clause of the will, and the legal right to have it exists by virtue of that clause and not necessarily by virtue of the residuary clause at all. The mere fact of the precedent and independent gift, followed by a bequest of the residue presupposes that there would be a residue after the legacy was paid. The devotion of such part of the residue as might come from the trust funds to the payment of the legacy, Avas at the best but a cautionary, though not a necessary, provision for the pay [631] ment of the legacy. The legacy would have been payable as well without as with that part of the residuary clause which relates to the trust fund. In other words, the right to have the legacy is not made to depend upon whether there was a surplus of the trust fund or not. Legally the legacy was payable out of any part of the testator’s estate. If it was actually paid out of the surplus of the trust fund, it was because that fund was part of the residuary estate, and as such was necessary for the purpose, but that circumstance does not affect tho legal status of the legatee. Decree affirmed.