English v. Harvey

The opinion of the court was delivered by Huston, J. — Several questions have arisen in this case. One, [309] whether the legacy to Charles English was payable out of the land, in case of a deficiency of the personal estate. Real as well as personal estate is liable to debts of every kind, due by the living or the dead, in this state; so far we differ essentially from England. In many parts of this state, the amount of personal property is generally small; often not enough to pay the debts, and seldom leaving much balance after paying them. The testator has been all his life accustomed to consider real and personal property as equally a fund to pay any demand, and it would not be probable, that he should forget this when making his will. In the language of the counsel, not likely that he should imagine himself in England; or, make a will with a view to their laws. Our courts have not adopted the rules in the old books. I would not, however, rely on the residuary clause only. ‘‘AH the rest of my property, real and personal, I give,” ,&c. It may be a clue to the intention of the testator; it may tend to show an idea of blending real and personal estate, but nothing is more unsafe than attempting to construe a will from anyone clause of it. The whole will must be viewed; and it will be found necessary, often, to control very plain and positive expressions, by other parts of the will. We all agree, however, that in this case, it is apparent, that the testator intended Charles English should receive nine thousand dollars, and not any less sum. The time when he was to receive it, admits of no doubt; but there is a difference of opinion as to the interest on that sum, and as to the liability of the executors. The sum of nine thousand dollars was to be put at interest, on landed security; from the interest Charles English was to be supported and educated, and what of the interest remained after this, was again to be put at interest for the benefit of the said Charles English, until he arrived at the age of twenty-one years. It has been contended, that by this will, the executors were to put out the interest every year, so as to raise compound interest; they have not done so, and for this they are said to be personally liable. No executor or guardian has yet been charged with compound interest in this court. In Say’s Executors v. Barns, 4 Serg. & Rawle, 112, Dr. Say was charged with the interest he received, and interest on it up to the time of paying it over, but not compound interest. No man can, during his life, get compound interest from his debtor; and I am not sure, that any man in this country can subject those who come after him to it. The law makes executors or guardians liable, generally, for interest on money which comes to their hands, and which they ought to put out, or to pay over. I have not yet met a case where more has been given. This testator charged annuities on his real estate, and subject to these he gave it all to his wife during her life. As long as she lived, which was till 1821, the executors could not touch it. He also gave to his wife, specifically, all his household furniture. The remaining personal estate amounted to eight thousand two hundred and seventy-five dollars. In the life time of the testator, he had [310] lent eight thousand dollars of this to Isaac and Job Harvey at five per cent., payable in 1814, and interest annually. This formed a large part of the personal estate, and the only available part for several years. As it was, by the act of the testator, put, for a time, out at five per cent., the devisee must be contented with five per cent, on this eight thousand dollars, until the bond fell due in 1814; and generally, if a testator directs money to be put out on landed security, and no more than five per cent, interest can be obtained on such security, the executor is answerable only for the five per cent, received, and the legatee who is to get the interest can get no ¡more. As to the' two hundred and seventy-five dollars, produced by the other personal estate, there was nothing amiss in keeping this for contingencies, so long as Isaac Harvey kept it. Norton, the executor, deceased, had the whole fund till March, 1821, when his account was- settled, and the balance paid over to Williams. The amount of Harvey's bond had been paid to him in 1820, and re-invested, together with the interest which had accumulated, and the two hundred and seventy-five dollars and eighty-four cents in other bonds and mortgages. Norton being dead, his account is only incidentally before us. We may say, however, that as his account was not excepted to, it appears final. Williams also settled his account, and paid over the money in his hands, and assigned the bonds and mortgages, which have been accepted. There is no ground for any charge against any of the executors, personally. As to the eight thousand dollars, and its interest, we leave the accounts as they are. So, also, as to the two hundred and seventy-five dollars and eighty-four cents of personal estate. But although the executors are not chargeable with interest on this last sum, the devisee is entitled to it out of the estate. There is something relative to a part of the proceeds of the real, estate being given by the widow, or Harvey, to Norton, about September, 1817, to make up the deficiency in the nine thousand dollars, which I do not understand. Whatever was so paid, then, to Norton, and left with him, is to be taken as part of the real estate then applied towards making up the amount of the legacy. These last two sums do not, together with the eight thousand dollars, make the legacy. The deficiency must come from the real estate with simple interest; and, also, as much as will pay interest on the two hundred and seventy-five dollars and eighty-four cents, and on the sum paid by the widow to Norton, up to the time when these sums were paid to him. The verdict and ■judgment will be ascertained by calculating on these principles;'and "for the Sum thus ascertained, there will be judgment against the executors, not personally, but to be levied from the estate of the testator.