Garret v. Rex

The opinion of the Court was delivered by Kennedy, J. This case appears to fall within the rule laid down by Mr Roper in his work on Legacies, vol. 2, 331; that where the interest or produce of a legacy is given to, or in trust for a legatee, or for the separate use of such legatee, without limitation as to continuance, the principal will be considered as bequeathed also. The authorities referred to by Mr Roper in support of this rule seem to establish it beyond all doubt in England. And the cases of Hellman v. Hellman, 4 Rawle 450, and Schriver v. Cobeau, 4 Watts 130, show that it has been received and adopted here. The distinction in this respect between a devise of realty and a bequest of personalty seems to be, that, in the former, words of limitation must be added to give more than an estate for life; but in the latter, words of qualification are required to restrain the intent and duration of the interest. A gift of the produce of a fund is, prima facie, a gift of that produce in perpetuity; and is consequently a gift of the fund itself, says Sir William Grant, in Adamson v Armitage, 19 Ves. 416. Unless, therefore, it shall appear either from the nature of the subject, or the context of the will, that the produce or interest of the fund alone was intended for the legatee, the gift of the interest will pass the principal. In the case before us the intention of the testator, so far as it can be collected from the will, which is the only evidence that can be received of it, appears to be in accordance with the rule. The bequest of the interest upon the three hundred pounds to his wife, is, in the first place, absolute and unqualified. The words of it are “ my said executor shall put three himdred pounds of my money out at interest, from the 15th day of April next for my said wife, and yearly pay her the interest.” These three hundred pounds do not appear to be mentioned or even alluded to again in any other part of the will with a view to make any other or further disposition of either the principal or interest thereof; yet it is evident from the conclusion of his will, that the testator not only intended thereby to dispose of all his estate; but that he thought he had done so, when he directed in the following words: “my said executor shall then take an inventory of my moveable effects, not herein before given, and shall convert the [18] same into money, by public vendue, and the said money, as also the cash in the house, and out on bonds and notes, &c., shall by my executor be equally divided between my said four children (which were all the children he had) in equal shares, and the grain that may be in the ground the next Spring to remain with my said plantation, and what I have hereunto given my said wife and each of my said children, shall be in full of their and each of their shares and estate in my said estate.” Judgment affirmed.