Sullivan et ux. v. Winthrop et al.

at this time married; and her husband is still living, and it is not pretended (and indeed, if one might travel out of the record, or consult the answers, it could not be pretended), that he was not able to maintain her. It is not asserted (and from Mr. Bowdoin's answer, I am led to presume, that the fact was otherwise), that she was not at that time of age. She certainly was much beyond that period at the time of the testatrix's death. Now, the principal ground, upon which interest is allowed to children and other persons, to whom a testator stands in loco parentis, is, that they are infants, and require a maintenance. No case can be produced, (as I believe,) where interest has been given in favor of a female married legatee, having a competent maintenance; or in favor of an adult child; for the law supposes an adult capable of maintaining himself. In Raven v. Waite, 1 Swanston R. 553, it was expressly held by Sir Thomas Plumer, Master of the Rolls, upon full argument, and under strong circumstances, that a female married adult legatee was not entitled to interest, until after the lapse of the year from the testator's death. His ground was, that it had never been allowed in favor of any adult legatee; and he added, "Neither reason nor authority extends the exception to adults."

But independently of this stringent decision, which has never been questioned, and is, indeed, completely sustained by Lowndes v. Lowndes, 15 Ves. 301, there is a circumstance furnished by the present will, which repels strongly any presumption, that the testatrix intended to provide for an immediate interest; and, in the absence of such presumption, would induce the Court not to decree it. I allude, not to the specific legacies of household furniture, &c,, given to Mrs. Sullivan, but to the life estate given to her in the real estate in Milk Street. This is an immediate devise ; and from the very terms of the will and marriage articles the estate may be pre

Sullivan et ux. v. Winthrop et al.

sumed to be valuable ; and in some of the answers it is stated ; to be quite valuable. How valuable I do not say; though I observe Mr. Bowdoin estimates it at the large sum of $40,000. But whatever might be its value, the Court cannot but see, that it is a fund capable in its own nature of yielding an income; and it is in this view only, that I rely on it.

But it is argued by the counsel for the plaintiffs, that assuming the general rule to be, as it is here stated, still it is inapplicable to the present case. First, it is said, that, here, there were few or no debts due from the estate of the testatrix, and therefore it was the duty of the executors to make immediate payment of the legacy; and if so, they ought to be presumed immediately to assent to the legacy, and to appropriate the funds accordingly. But it was just as much their duty to pay all other legacies as this; and just as much their duty to take care of the interest of the residuary legatee, as of the general legatees. They had a right to time to make inquiries, to arrange the funds, and to deliberate on the point, out of what portion of the personal estate the legacies could be most conveniently paid. But the rule, as to payment of legacies, does not, as we have already seen, depend upon the posture of the particular estate, whether there are debts to be paid or not, or assets to be got in or not.1 It stands upon a broader principle of public convenience. If there are not assets in the hands of the executors at the end of the year, still interest runs from that period. If there are assets, the law does not compel the executors to pay legacies within that period. It leaves the subject, where it can best be left, to the discretion of those, who are the chosen trustees or agents of the testator to administer his estate. The law aims not so much to do exact justice in the

1 Gibson v. Bott, 7 Ves. 89, 95.

particular case, as to administer a safe and steady general justice, meeting the mass of cases. In Sitwell v. Bernard, 6 Ves. 520, 539, Lord Eldon said, "Where an estate is given in various legacies, and the residue is given, it is a rule of convenience, that authorizes this court to say, (for there is no language in the will for it,) that those legacies shall be payable at the end of a year from the death of the testator; because, as a general rule, it may be taken, that the personal estate may be collected within a year; though in many instances that falls enormously to the prejudice of the residuary legatee." The truth is, that the law does not consider the legacy for the purposes of the will as due before the end of the year; and therefore the executors are not bound to pay it before it is due; but may exercise their discretion.

Then, again, it is said, that the marriage articles provide for an immediate distribution of her estate according to the will. But I can read no more in the articles than a general direction, that the estate shall be distributed according to the will upon the decease of the testatrix. This can only mean in a reasonable time; and does not supersede the general rules of legal interpretation. The case of Webster v. Hale, 8 Ves. 410, where interest was denied, had a far more pressing injunction. The law cannot deal with such niceties of expression for any practical purposes, and therefore excludes them from its view.

Then, again, a constructive or positive assent to the legacy by the executors is relied on; but that goes no further than to provide a legal remedy, and not to hasten the time when the legacy is due or payable.

Then, again, a particular class of cases is relied on, as furnishing an exception to the rule, as to interest, and allowing it from the death of the testator, where the court have endeavoured to collect the intention from the language of

Sullivan et ux. v. Winthrop et al.

the will. I allude to that class of cases, under which Sitwell v. Bernard, 6 Ves. 539, Entwistle v. Markland, 6 Ves. 528, Stuart v. Bruere, 6 Ves. 529, Fearns v. Young, 9 Ves. 549, Gibson v. Bott, 7 Ves. 89, Hutchin v. Mannington, 1 Ves. Jun. 366, and Angerstein v. Martin, 1 Turner R. 232, fall. But that class chiefly respects cases, where a residue is given to one for life with remainder over. There are no circumstances in the present case, which bring it within the reach of the principles of those decisions, and it is therefore unnecessary to discuss them.

Upon the whole, in every view, in which I can consider this case, after the very learned and able arguments, with which I have been furnished, and which have so much aided me in arriving at a satisfactory conclusion, my judgment is, that upon this legacy Mrs. Sullivan was not entitled to any interest until a year after the death of the testatrix. The general rule established for a great length of time is against the allowance. The present case is not within any known exception to that rule. I am not bold enough to make a new one; and must content myself on this, as on many other occasions, not in doing what I might wish in the particular case, but what the law requires from one, whose duty it is merely to expound it.

But there is one circumstance in the case, which materially affects the application of the rule in the present case. It appears, that the executors did in point of fact within the year invest six thousand dollars in their own names as trustees of Mrs. Sullivan, and also, upon her written request and upon security given by her husband, did loan to him the farther sum of three thousand dollars, making in the whole an investment in fact upon her account of $9000. Now it appears to me, that this was equivalent to the payment of so much of her legacy. It was an appropriation of so much to

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her exclusive account, and discharged the estate of the burthen pro tanto. In the case of such a payment within the year directly to a legatee, there can be no doubt, that the subsequent income of the sum so paid must belong to the legatee. It appears to me, that the appropriation of the sum in the hands of the trustees of Mrs. Sullivan for her use, and on her account exclusively, is not distinguishable in principle from the case of payment.

It has been already stated, that Mrs. Sullivan could not claim interest until after the year; and the executors could not be compelled to pay the legacy until that period. But it by no means follows, that, as a matter of discretion, the executors were not at liberty to pay the legacy within the year. There would be no breach of duty in so doing. They might, if they had seen fit, have invested the whole $20,000 for Mrs. Sullivan exclusively in stock within the year; and if they had, she would from the time of the investment have been entitled to the income. In Pearson v. Pearson, 1 Sch. & Lefr. 10, 12, Lord Redesdale said, "The executor may pay the legacy within the twelve months; but he is not compelled so to do. He is not to pay interest for any time within the twelve months, although during that time he may have received interest. But if he has assets, he is to pay from the end of the twelve months, whether the assets have been productive or not." And in the recent case of Angerstein v. Martin, 1 Turner R. 232, 241, Lord Eldon said, "I know of no case, which prevents executors, if they choose, from paying legacies or handing over the residue within the year; and if it is clear, currente anno, that the fund for the payment of debts and legacies is sufficient, there can be no inconvenience in so doing." The same doctrine is found in elementary writers. See 2 Roper Leg. ch. 20, § 2, p. 188, (White's edition.) But it is sufficient for my guidance, that it