Clepper v. Livergood

The opinion of the court was delivered by Rogers, J. It is conceded, that the judgment is correct so far as respects the right to the possession of the fund, amounting to 1170 dollars 65 cents, upon the security tendered, or that the plaintiff is entitled to an absolute judgment for 342 dollars and 77 cents, the amount of interest. But it is contended that the court should have rendered judgment for 576 dollars 90 cents, the amount of interest which accrued upon the one-half of the one-third of the principal, as stated in the special verdict. On the death of Ann (which was [115] before the confirmation of sale), Rudolph became the owner of one-half instead of one-third of the share of his mother; and on the confirmation of sale, the proceeds, according to the principle settled in M’Clay v. Grider, 11 Serg. & Rawle, 224, went into the hands of his guardian as money. The case arises on the fifth section of the act of the 19th of April 1792, and the only question is, whether the money which was received by the guardian, came to the ward ex parte materna; for the father, by the act referred to, is expressly excluded, wherever the estate of a deceased child comes on the part of his or her mother. By the sale, the real property is changed into personal; but, notwithstanding this, there is no difficulty in tracing the source from which it is derived. It does not, in any particular, partake of the character of a new acquisition, for at the time of his death, Rudolph was a minor, and could do no act, either by himself or guardian, which would change the operation of the exception in the statute. The money was not intermingled with the funds belonging to the minor, but remained in the same situation it was placed by the sale of the real estate. If Rudolph had attained full age, had changed the nature of his estate, had engaged in commercial or other business, and had acquired other property into which this was so intermingled as that it could not be distinguished from the general mass of his estate, a different case might have been presented. But when, as here, there is no difficulty in identifying the property, and tracing the stock from which the fund was derived, we are of opinion it comes within the exception of the act, and consequently descends in the same manner as if Rudolph survived his father. Judgment affirmed.