Opinion
(December Term, 1859.)
Where a pecuniary or general legacy is given, but not payable until the legatee attains the age of 21, with a bequest over divesting the legacy in case he dies under age, the personal representative will take the accumulated interest.
CAUSE removed from the Court of Equity of FORSYTH.
Wharton for plaintiff.
Moore, Masten, Fowle, and T. J. Wilson for defendant.
Antionette L. Breittz died in the county of Forsyth, having made a last will and testament, which was admitted to probate, and C. D. Keehln, the executor therein named, qualified as such. C. D. Keehln afterwards died, leaving a last will and testament, which was also admitted to probate, and Theodore F. Keehln and wife, the executors therein named, qualified according to law and undertook the execution of the wills of both Antionette Breittz and C. D. Keehln.
This bill is filed for a construction of certain clauses of the will of Antionette Breittz set out below:
The second clause of this will is as follows: "It is my will and desire that my sister, L. F. Bagge, after my decease, take my daughter, Sarah E. Breittz, entirely under her care and charge; and it is further my will that my said sister, L. F. Bagge, receive out of my estate the sum of $150 each and every year until my said child Sarah shall have (274) attained the age of 10 years, and after the expiration of said ten years the sum of $300 for the extra use and benefit of my said daughter, Sarah E. Breittz."
7. "I give and bequeath unto my daughter, Sarah E. Breittz, all my books, piano, secretary, all my clothes, etc., forever; but my sister, L. F. Bagge, to take all under her care until my said daughter, Sarah E. Breittz, either make use of it, or when she becomes of age; should, however, my said daughter, Sarah E. Breittz, depart her life before she arrives at the age of 21 years, then the property mentioned in this paragraph, together with all the property, moneys, notes, land, or whatever it may be that may have come from me to my said daughter, Sarah E. Breittz, is to go to the children of my said sister, Rebecca M., intermarried with Henry A. Shultz, share and share alike."
10. "My will and desire is that all the residue of my estate, after taking out the devisees and legacies above mentioned, to be paid over to my daughter, Sarah E. Breittz, and her heirs forever."
The will appointed C. D. Keehln guardian of Sarah E. Breittz, which office he discharged up to his death. The said Sarah E. Breittz, the daughter and legatee, died under 21, and the defendant Francis Fries was appointed her administrator, against whom, and the three children of Mrs. Shultz, this bill is filed. The only point upon which it prays the instruction of the Court is whether the rents and profits which accumulated between the death of the testatrix and that of her daughter, Sarah E. Breittz, goes to the ulterior legatees, or to the administrator of the said Sarah.
As children are supposed to be the peculiar objects of a parent's care, constructions most favorable to their rights have been generally adopted by the courts.
We accordingly find that a pecuniary legacy to a child does not (275) stand in all respects upon the same footing with one to a person not in that relation. As a general rule, when a day of payment is fixed for a legacy interest will not be counted upon it until the day arrives, but it is not generally so in respect to a child's legacy, because, as it is said, of the child's necessity in the meantime for support. So when a general legacy is left to a child in such a way as to vest, but upon a condition subsequent, as upon dying before obtaining the age of 21, it is to divest and go over, the child will be entitled to the interests or profits for support; and if he die, the accumulation will go to his personal representative. This general rule is supported by many legal authorities, and is only departed from, as we think, when a different intention is manifest in the provisions of the will, as when complete provision for support is otherwise made and a purpose declared to leave the interest to accumulate and go over, upon the happening of the condition, to the ulterior legatee. Hearle v. Greenbank, 3 Atkins, 697, which was cited on the argument, is a case that falls under the exception above stated. The general rule was there admitted to be that such legacies bore interest.
The governing principle in construing every testamentary paper is to discover and carry into execution the testator's purposes. Rules by which we are guided in the interpretation of language have this end in view and are made subservient to it. It seems to us, upon a consideration of all parts of the will having relation to the matter in controversy, that the testatrix intended the donation in the second clause of her will in aid only of the other fund for education and support. The language used, "for the extra use and benefit" of her daughter, does not exclude, but rather suggests, the idea of other means of support. There is no part of the will which favors a different conclusion or indicates an intention to tie up the accumulation of this estate during the minority of the daughter, and that they should go to her only in case she obtained the age of 21. The fund is given to her in the tenth clause in language sufficient and proper to convey a vested interest; and the provision in the seventh clause, by the construction most unfavorable (276) to the rights of the legatee, postpones merely the possession until the age of 21. It follows, from this view of the will, that the interest and profits of the entire estate of Sarah E. Breittz vested absolutely in her were, during her lifetime, subject to her education and support, and upon her death, under age, passed to her personal representative. The conclusion to which we thus come is fortified by a number of analogous cases, which seem to establish the rule of interpretation "that wherever a pecuniary or general legacy is given out, not payable until the legatee attain the age of 21, with a bequest over, divesting the legacy in case he die under age, the personal representative will take the accumulated interest." Acherly v. Wheeler, 1 P. Williams, 783; Nichols v. Osborne, 2 P. Williams, 419; Barber v. Barber, 14 Eng Con. Chan., 388.
We are of opinion, therefore, that the personal representative of Sarah E. Breittz will take the interest, dividends, and profits accumulated upon her estate from the death of the testatrix to the time of the said Sarah's death, subject to a due course of administration, and that the capital only will pass to the children of Rebecca M. Shultz.
PER CURIAM. Decree for an account.