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The decisions in the courts of this State on this subject have adopted and followed the law as laid down by Lord Eldon and by Mr. Roper.

In Halsted v. Meeker, Ex'r, 3 C. E. Green, 136, upon a direction in the testator's will that executors should place the sum of $20,000 at interest, and pay the net income or interest thereof, semi-annually to the testator's daughter, Chancellor Zabriskie held that the executors were required to invest at the end of the year, and that the legatee was entitled to the interest which should accrue from that time. In Ienion's Ex'rs v. Jacobus, 12 C. E. Green, 28, the bequest was to the testator's daughter, of the legal interest of $1,400, to be paid to her annually, and the principal at her death to be divided among her heirs ; Chancellor Runyon held that the interest payable to the testator's daughter was to be computed from the end of one year from the testator's death. The same rule was re-affirmed and applied in Howard v. Francis, 3 Stew. 444. These cases from the Court of Chancery were cited with apparent approval in Van Blarcom v. Duger, 4 Stew. 495. They are decisions of a court of co-ordinate jurisdiction, and ought not to be disregarded or overruled except for the most cogent reasons. They apply directly to this case, and in my judgment were correctly decided.

I think that for the reason already given, the judgment should be reversed.

It may be remarked that, on a ground that may be technical, and was not taken on the argument, the same result would be reached. The testatrix directs that none of the legacies or interest given or bequeathed, shall be due or payable during the lifetime of her mother. A copy of the will is annexed to the declaration, and by averment, made part of it; and the death of the mother of the testatrix is nowhere averred in the pleading.

Judgment reversed.1

1 The law seems to be settled otherwise in Pennsylvania. 106 Pa. 268 (1884). See, also, Ayer v. Ayer, 128 Mass. 575.

Townsend's Appeal,

NOTE."Where the court decrees a legacy to be a satisfaction of a debt, the court gives interest always from the death of the testator."— Per LORD HARDWICKE, C., in Clark v. Sewell, 3 Atk. 96, 99 (1744).

The running of interest on a legacy "to be paid out of the money due on” a certain mortgage "when the same shall be recovered," does not depend upon the time when the money is recovered. Wood v. Penoyre, 13 Ves. 325 (1807). See, also, Brooke v. Lewis, 6 Mad. 358 (1822).

ACTIONS FOR LEGACIES. In England trover will lie for the subject of a specific legacy, after the assent of the executor, Williams v. Lee, 3 Atk. 223 (1745); but for a specific legacy before assent, or for a pecuniary legacy, no action lies at common law, Deeks v. Strutt, 5 T. R. 690 (1794).

In several of the United States, an action at law is given for a pecuniary legacy or for a specific legacy before assent. Colwell v. Alger, 5 Gray, 67 (1855). Sometimes this is by virtue of a Statute, but sometimes without it, e. g., Knapp v. Hanford, 6 Conn. 170 (1826).

LEGACY TO DEBTOR. Though this takes the form of a release, it is still a legacy, and the debt is assets.

A debt due from a legatee, although barred by the Statute of Limitations, can be set off against a legacy. Courtenay v. Williams, 3 Hare, 539 (1844). It is otherwise under the Massachusetts Statute. Allen v. Edwards, 136 Mass. 138 (1883).

RESIDUE. On a gift of the residue for life, with remainder over, the life-tenant is, in general, entitled to the income from the death of the testator, though many nice distinctions exist. See 2 Wms. Exec. (8th ed.), 1396–1402; 2 Woerner, Amer. Law of Adm. § 458.

RIGHT OF EXECUTOR TO RESIDUE. In England, when the testator appointed an executor, and made no disposition of the residue, the executor was entitled to it beneficially; but slight expressions would turn him into a trustee for the next of kin. 2 Wis. Exec. (8th ed.), 1483-1488. Now, by Statute, executors, in such cases, are made trustees. St. 11 Geo. IV. & 1 Wm. IV. c. 40. Generally in the United States, sometimes by Statute, sometimes without, executors take the undisposed-of residue as trustees, and not beneficially.

CHAPTER XI.

DISTRIBUTION.

ST. 22 & 23 CAR. II. c. 10 (1670). An Act for the better settling of intestates' estates. Be it enacted by the king's most excellent majesty, with the advice and consent of the Lords Spiritual and Temporal, and the Commons in this present Parliament assembled, and by the authority of the same, that all ordinaries, as well the judges of the prerogative courts of Canterbury and York for the time being, as all other ordinaries and ecclesiastical judges, and every of them, having power to commit administration of the goods of persons dying intestate, shall and may upon their respective granting and committing of administration of the goods of persons dying intestate, after the first day of June one thousand six hundred seventy and one, of the respective person or persons to whom any administration is to be committed, take sufficient bonds with two or more able sureties, respect being had to the value of the estate, in the name of the ordinary, with the condition in form and manner following, mutatis mutandis, viz.: —

day of

II. The condition of thus obligation is such, that if the within bounden A. B. administrator of all and singular the goods, chattels and credits of C. D. deceased, do make or cause to be made, a true and perfect inventory of all and singular the goods, chattels and credits of the said deceased, which have or shall come to the hands, possession or knowledge of him the said A. B. or into the hands and possession of any other person or persons for him, and the same so made do exhibit or cause to be exhibited into the registry of court, at or before the next ensuing; (2) and the same goods, chattels and credits, and all other the goods, chattels and credits of the said deceased at the time of his death, which at any time after shall come to the hands or possession of the said A. B. or into the hands and possession of any other person or persons for him, do well and truly administer according to law; (3) and further do make or cause to be made, a true and just account of his said administration, at or before the day of And all the rest and residue of the said goods, chattels and credits which shall be found remaining upon the said administrator's account, the same being first examined and allowed of by the judge or judges for the time being of the said court, shall deliver and pay unto such person or persons respectively, as the said judge or judges by his or their decree or sentence, pursuant to the true intent and meaning of this Act, shall limit and appoint. (4) And if it shall hereafter appear, that any last will and testament was made

by the said deceased, and the executor or executors therein named do exhibit the same into the said court, making request to have it allowed and approved accordingly, if the said A. B. within-bounden, being thereunto required, do render and deliver the said letters of administration (approbation of such testament being first had and made) in the said court; then this obligation to be void and of none effect, or else to remain in full force and virtue.

III. Which bonds are hereby declared and enacted to be good to all intents and purposes, and pleadable in any courts of justice: (2) and also that the said ordinaries and judges respectively, shall and may, and are enabled to proceed and call such administrators to account, for and touching the goods of any person dying intestate; (3) and upon hearing and due consideration thereof, to order and make just and equal distribution of what remaineth clear (after all debts, funerals and just expenses of every sort first allowed and deducted) amongst the wife and children, or children's children, if any such be, or otherwise to the next of kindred to the dead person in equal degree, or legally representing their stocks pro suo cuique jure, according to the laws in such cases, and the rules and limitation hereafter set down; and the same distributions to decree and settle, and to compel such administrators to observe and pay the same, by the due course of his Majesty's ecclesiastical laws (4) saving to every one, supposing him or themselves aggrieved, right of appeal as was always in such cases used.

IV. Provided, that this Act, or anything herein contained, shall not anyways prejudice or hinder the customs observed within the city of London or within the province of York or other places, having known and received customs peculiar to them, but that the same customs may be observed as formerly; anything herein contained to the contrary notwithstanding.

V. Provided always, and be it enacted by the authority aforesaid, that all ordinaries and every other person who by this Act is enabled to make distribution of the surplusage of the estate of any person dying intestate, shall distribute the whole surplusage of such estate or estates in manner and form following; that is to say, (2) one third part of the said surplusage to the wife of the intestate, and all the residue by equal portions, to and amongst the children of such persons dying intestate, and such persons as legally represent such children, in case any of the said children be then dead, other than such child or children (not being heir at law) who shall have any estate by the settlement of the intestate, or shall be advanced by the intestate in his lifetime, by portion or portions equal to the share which shall by such distribution be allotted to the other children to whom such distribution is to be made: (3) and in case any child, other than the heir at law, who shall have any estate by settlement from the said intestate, or shall be advanced by the said intestate in his lifetime by portion not equal to the share which will be due to the other children by such distribution as aforesaid; then so much of the surplusage of the estate of such intestate, to be distributed

to such child or children as shall have any land by settlement from the intestate, or were advanced in the lifetime of the intestate, as shall make the estate of all the said children to be equal as near as can be estimated: (4) but the heir at law, notwithstanding any land that he shall have by descent or otherwise from the intestate, is to have an equal part in the distribution with the rest of the children, without any consideration of the value of the land which he hath by descent, or otherwise from the intestate.

VI. And in case there be no children nor any legal representatives of them, then one moiety of the said estate to be allotted to the wife of the intestate, the residue of the said estate to be distributed equally to every of the next of kindred of the intestate, who are in equal degree and those who legally represent them.

VII. Provided, that there be no representations admitted among collaterals after brothers' and sisters' children: (2) and in case there be no wife, then all the said estate to be distributed equally to and amongst the children: (3) and in case there be no child, then to the next of kindred in equal degree of or unto the intestate, and their legal representatives as aforesaid, and in no other manner whatsoever.

VIII. Provided also, and be it likewise enacted by the authority aforesaid, to the end that a due regard be had to creditors, that no such distribution of the goods of any person dying intestate be made till after one year be fully expired after the intestate's death; (2) and that such and every one to whom any distribution and share shall be allotted, shall give bond with sufficient sureties in the said courts, that if any debt or debts truly owing to the intestate shall be afterwards sued for and recovered, or otherwise duly made to appear; that then and in every such case he or she shall respectively refund and pay back to the administrator his or her ratable part of that debt or debts, and of the costs of suit and charges of the administrator by reason of such debt, out of the part and share so as aforesaid allotted to him or her, thereby to enable the said administrator to pay and satisfy the said debt or debts so discovered after the distribution made as aforesaid.

IX. Provided always, and be it enacted by the authority aforesaid, that in all cases where the ordinary hath used heretofore to grant administration cum testamento annexo, he shall continue so to do, and the will of the deceased in such testament expressed shall be performed and observed in such manner as it should have been if this Act had never been made.

ST. 1 JAC. II. c. 17, § 7 (1685). Provided also, and it is further enacted by the authority aforesaid, that if after the death of a father, any of his children shall die intestate without wife or children, in the lifetime of the mother, every brother and sister, and the representatives of them, shall have an equal share with her; anything in the lastmentioned Acts to the contrary notwithstanding.

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