Trustees of Jacobs v. Bull

The opinion of the Court was delivered by Gibson, C. J. A legacy to a child vested, but not charged on land, and payable with interest, by the terms of the will, at twenty-one, shall nevertheless be paid presently at the death of the child, should that event happen before the time of payment originally appointed. The rule is laid down in Mr Roper’s Treatise, vol. 1, p. 393, with references to the cases, but without a clear and precise exposition of the reason of it. The reason and the consequences, however, seem to be that, as the estate would not be increased by further postponement, interest being demandable in compensation of delay, and as the object of the testator, evidently having respect to the circumstances and condition of the legatee, would no longer be promoted by it, no beneficial purpose could be answered by carrying into effect an arrangement adapted to circumstances which no longer exist. And the reason seems to imply this distinction, that where the postponement is presumed, from circumstances peculiar to the child’s condition, to have been intended for his personal benefit, payment shall be made as soon as it is ascertained by his death, that his benefit will no longer be promoted by it; but that where it is presumed from the circumstances and condition of the estate, to have been intended for the benefit of others, the time of payment shall not be hastened by his death. In accordance with this, we find that when less interest is directed to be paid, than the legacy would make in the lands of the executors, payment shall be deferred notwithstanding the death, in order to give the estate the benefit of the difference ; and the same principle governs in respect to the payment of a legacy charged on land, the time being presumed to have been postponed for the convenience of the heir or devisee; as was held in [373] Feltham v. Feltham, 2 P. Wms 271. What then is the case stated? A father bequeaths a legacy of 32,000 dollars to his son, in annual instalments of 2000 dollars, with interest on the principal, and without charging it on land. It seems, therefore, to differ from the common case of payment at twenty-one, in nothing but the appointment of several days of payment instead of a single one. The clause empowering the executors to take possession of the real estate given, in addition to the legacy, in case the son should relapse into habits of inebriety, instead of making room for an exception, proves that the protraction of payment was intended to protect him from the temptation to squander incident to the possession of large' sums of ready money, and brings the case more emphatically within the reason of the rule; to say the least, it cannot make a difference unfavourable to it. By the death of the son, then, the unexpended residue became presently payable to those who have succeeded to his rights; and whether by the executors to his trustees under the deed of assignment, or by the executors directly to the guardian of his infant, the party beneficially entitled under the deed, is all that remains to be determined. It is said that as the money is, in point of fact, as much in the hands of the executors as it .is in those of the trustees, and as any further execution of the trust is rendered unnecessary by the death of him who created it, payment may be had from the executors without the intervention of the trustees. But as money can pass only by delivery, it must necessarily have been taken to have been in the hands of the two executors who had it in fact, in their character of trustees, in order to protect it from the subsequent debts .of the legatee, against which it was the design of the trust to guard it; and having been received by them in contemplation of law as trustees, it is demandable from them in no other character. Whatever, then, may be the right of the guardian to possession of the fund, it can not be enforced in this action. Judgment in each suit affirmed.