Budd v. Garrison

Miller, J., delivered the opinion of the Court. In this case the testator gave and bequeathed to his daughter, Mary H. Budd, his entire estate, real and per ⁴²⁰ sonal, she “to pay all legacies out of said estate herein and after named.” He then gives to his daughter, Sarah Trites, the sum of $3000. He then gives and devises to the children of his son Thomas, the sum of $1000, “to be equally divided among the same, when they shall arrive at lawful age,” and in similar terms gives a like sum to the children of his son Daniel. He then gives to the children of his son Nehemiah, “the sum of $300 each, to be paid when they shall arrive at lawful age.” He then appoints his daughter, Mary H. Budd, guardian for the children of his said three sons, and constitutes his grand-son, J. Thomas Budd, his executor.

The question presented by this appeal is, from what time does this legacy to the children of Thomas bear interest ? There can be no doubt that a pecuniary legacy bears interest from the time at which it is, by the terms of the will, made payable, and if no time of payment is fixed by the will, it is payable within the time limited by law, and bears interest from that date, that is from the expiration of one year after the testator’s death. To this general rule there is the exception that where the testator stands to the legatee in loco parentis, and the latter is otherwise unprovided for, then whether a future time is fixed for payment or not, interest will be allowed from the testator’s death. We need not stop to enquire whether this testator stood in that relation to these legatees or not, because we are satisfied from the will itself, it was his intention they should receive the benefit of interest on this sum, before they attained lawful age, and the legatees have taken no appeal from that decree below, which allows them interest only after the expiration of the year.

It is clear the intention of the testator must govern as to the time of payment of legacies, as well as upon any other point. Hanson vs. Brawner, 2 Md., 90 . And as was said by Lord Hardwick in Heath vs. Perry, 3 Ath., 102, “ Oases of this kind, how far a legatee, who is not entitled to the payment of his ⁴²¹ legacy immediately, shall have interest in the meantime, depend