of a vested legacy, due immediately, and charged on land or money *514] in the funds, which yield an immediate profit, *interest shall be payable thereon from the testator's death; (149) but if charged only on the personal estate, which cannot be immediately got in, it shall carry interest only from the end of the year after the death of the testator. (h) (150)

(h) 2 P. Wms. 26, 27.

postponed from a consideration of circumstances merely personal as to the legatee, or with reference to the condition of the estate to be charged, and the interests of others therein. When the direction that the charge shall not be raised till a future day refers to the circumstances of the person to take, (as, for instance, if the charge be intended for a portion,) there the construction has been that the gift is so connected with the purpose for which it was given, that if such purpose fail the land ought not to be charged: but, it has been as repeatedly said, a legacy vests immediately in interest, though it be charged on lands, if the time of payment appears to have been postponed only out of regard to the circumstances of the estate. Lowther v. Condon, 2 Atk. 128. Dawson v. Killett, I Br. 123. Godwin v. Munday, ibid. 194. Smith v. Partridge, Ambl. 267. Sherman v. Collins, 3 Atk. 320.-CHITTY.

(149) The old authorities are in conformity with the text, and hold that where a fund, of whatever nature, upon which a testator has charged legacies, is carrying interest, there interest shall be payable upon the legacies from the time of the testator's death. But that is exploded now by every day's practice. Though a testator may have left no other property than money in the funds, interest upon the pecuniary legacies he has charged thereon is now never given till the end of a year after his death. Gibson v. Bott, 7 Ves. 97. The rule is different with respect to legacies charged on land. Whether the reason assigned for this distinction in the text and in Maxwell v. Wettenhall (1 P. Wms. 25) be the true one, has been doubted. A fund consisting of personalty may be "yielding immediate profits" as well as lands; but it is obvious that the reason of the rule as to the commencement of interest upon legacies given out of personal estate, which is a rule adopted merely for convenience, (Garthshore v. Chalie, 10 Ves. 13. Wood v. Penoyre, 13 Ves. 333,) cannot apply to the case of legacies not dependent on the getting in of the personal estate, and charged upon lands only: in such case interest, it has been said, must be chargeable from the death of the testator, or not at all. Pearson v. Pearson, I Sch. & Lef. II. Spurway v. Glyn, 9 Ves. 486. Shirt v. Westby, 16 Ves. 396.CHITTY. Loring v. Woodward, 41 N. H. 391, 394 (1860). Conch v. Eastham et al., 29 W. Va. 784, 794 (1887).

(150) As a legacy, for the payment of which no other period is assigned by the will, (Anonym. 2 Freem. 207,) is not due till the end of a year after the testator's death. (Hearle v. Greenbank, 716,) and as interest can only be claimed for non-payment of a demand actually due, it is an undisputed general rule that, although a legacy vests (where no special intention to the contrary appears) at the testator's death, (Garthshore v. Chalie, 10 Ves. 13,) it does not begin to carry interest till a year afterwards, unless it be charged solely on lands. See the last note. That general rule, however, has exceptions. Raven v. Waite, I Swanst. 557. Beckford v. Tobin, 1 Ves, Sen. 310. A specific bequest of a corpus passes an immediate gift of the fund, with all its produce, from the death of the testator. Kirby v. Potter, 4 Ves. 751. Barrington v. Tristram, 6 Ves. 349. Another exception arises when a legacy is given to an infant by a parent, or by a benefactor who has put himself in loco parentis [in the place of a parent]: in such case, the necessary support of the infant may require immediate payment of interest. Lowndes v. Lowndes, 15 Ves. 304. Heath v. Perry, 3 Atk. 102. Mitchell v. Bower, 3 Ves. 287. It must, however, be observed, this latter exception operates only when the child is otherwise unprovided for. When a father gives a legacy to a child, it will carry interest from the death of the testator, as a maintenance for the child, where no other fund is applicable for such maintenance, (Carew v. Askew, I Cox, 244. Harvey v. Harvey, 2 P. Wms. 22;) but where other means of support are provided for the child, then the legacy will not carry interest from an earlier period than it would in the case of a bequest to a perfect stranger. Wynch v. Wynch, I Cox, 435. Ellis v. Ellis, I Sch. & Lef. 5. Tyrrel v. Tyrrel, 4 Ves. 5. And the general rule as to non-payment of interest upon a legacy, before such legacy becomes due, must not be broken in upon by an exception in favor of an adult legatee, however nearly related to the testator, (Raven v. Waite, 1 Swanst. 588;) nor, as illegitimate children are no more in legal contemplation than strangers, (Lowndes v. Lowndes, 15 Ves. 304,) will interest be allowed by way of maintenance for such legatees, (Perry v. Whitehead, 6 Ves. 547,) unless it can be satisfactorily collected from the will that the testator intended to give interest. Beckford v. Tobin, 1 Ves. Sen. 310. Ellis v. Ellis, 1 Sch. & Lef. 6. Newman v. Bateson, 3 Swanst. 690. Even in the case of a grandchild, an executor must not take upon himself to pay interest upon a legacy by way of maintenance, when that is not expressly provided by the will; for, though a court of equity will strug.

Besides these formal legacies, contained in a man's will and testament, there is also permitted another death-bed disposition of property; which is called a donation causa mortis. (151) And that is, when a person in his last sickness, apprehending his dissolution near,(152) delivers or causes to be delivered to another the possession of any personal goods, (153) (under which have been included bonds, and bills drawn by the deceased upon his banker,) to keep in case of his decease. This gift, if the donor dies, needs not the assent of his executor: yet it shall not prevail against creditors; (154) and is accompanied with this implied trust, that, if the donor lives, the property thereof shall revert to himself, being only given in contemplation of death, or mortis causa. (i)(155) This method of donation might have subsisted in

(i) Prec. Cha. 269. 1 P. Wms. 406, 441. 3 P. Wms. 357.

gle in favor of the grandchild, (Crickett v. Dolby, 3 Ves. 12. Collis v. Blackburn, 9 Ves. 470,) yet it seems there must be something more than the mere gift of a legacy, something indicating that the testator put himself in loco parentis, [In the place of a parent] to justify a court in decreeing interest for a grandchild's maintenance. Perry v. Whitehead, 6 Ves. 547. Rawlins v. Goldtrap, 5 Ves. 443. Hill v. Hill, 3 Ves. & Bea. 186. But, of course, even when a legacy to a grandchild will never become due unless he attains his majority, still, maintenance may be allowed for his support during his infancy, provided the parties to whom the legacy is given over in case of the infant's death are competent and willing to consent. Cavendish v. Mercer, 5 Ves. 195, in note. Under any other circumstances, when a legacy to infants is not given absolutely and in all events, but is either not to vest till a given period, or is subject to being devested by certain contingencies, upon the occurrence of which it is given over, (Errington v. Chapman, 12 Ves. 25,) if the words of the will do not authorize the application of interest to the maintenance of the infant legatees, a court of equity never goes further than to say that if it can collect before it all the individuals who may be entitled to the fund, so as to make each a compensation for taking from him part, it will grant an allowance for maintenance, (Errat v. Barlow, 14 Ves. 203. Marshall v. Holloway, 2 Swanst. 436. Ex parte Whitehead, 2 Younge & Jerv. 249;) or, where there is no gift over, and all the children of a family are to take equally, there, although other children may possibly come in esse [In being]after the order made, yet all the children born or to be born will be held to have a common interest; and therefore the interest of the fund, as far as it may be requisite, will be applicable for maintenance. Fairman v. Green, 10 Ves. 48. Greenwell v. Greenwell, 5 Ves. 199. Errat v. Barlow, 14 Ves. 204. Haley v. Bannister, 4 Mad. 280. But if the will contain successive limitations, under which persons of another family, and not in being, may become entitled, it is not sufficient that all parties presumptively entitled then living are before the court; for none of the living may be the parties who eventually may become entitled to the property. In such a case, an order for interest by way of maintenance might be in effect to give to one person the property of another. Marshall v. Holloway, 2 Swanst. 436. Ex parte Kebble, 11 Ves. 606.

No exception is to be made, in favor of the testator's wife, to the general rule that a pecuniary legacy does not bear interest before the time when the principal ought to be paid, unless a distinct intention to give interest from an earlier period can be fairly collected from the words of the testator's will. Stent v. Robinson, 12 Ves. 461. Lowndes v. Lowndes, 15 Ves. 304. Raven v. Waite, I Swanst. 559.

Great part of this note is extracted from I Hovenden's Suppl. to Ves. Jr. Rep. 144, 145.-CHITTY.

(151) [On account of death.] 2 Schoul. on Pers. Prop. (2 ed.) 123, 127. Blount v. Burrow, I Ves. Jr. 546, 547 (1792).

(152) 2 Schoul. on Pers. Prop. (2 ed.) 143, 162. Craig v. Kittredge, 46 N. H. 57, 58 (1865). A gift made under no apprehension of death other than a general expectancy of dissolution, soon to occur in the course of nature, is not a good donatio causá mortis. [A gift by reason of death.] Trustees etc. v. Hull Adm'r etc., 48 Ill. App. 536, 544 (1892.) (153) 2 Schoul. on Pers. Prop. 150, 151. 2 Barb. on Rights of Pers. and Prop. 631. Smith, Adm'r v. Dorsey. 38 Ind. 451, 455 (1872).

(154) 2 Schoul. on Pers. Prop. (2 ed.) 172. Wells, Adm'r, etc. v. Tucker et ux., 3 Binn. (Pa.) 366, 373 (1811).

(155) 2 Schoul. on Pers. Prop. (2 ed.) 176. Thompson v. Thompson, 12 Tex. 327, 331 (1854).

A donatio mortis causá [A gift by reason of death] has many of the properties of a legacy; it is liable to debts, and dependent on survivorship. Tate v. Hilbert, 2 Ves. Jr. 120.

a state of nature, being always accompanied with delivery of actual possession; (k) and so far differs from a testamentary disposition: but seems to have

(k) Law of Forfeit, 16.

Jones v. Selby, Prec. in Cha. 303. Miller v. Miller, 3 P. Wms. 357. It is not a present absolute gift, vesting immediately, but a revocable and conditional one, of which the enjoyment is postponed till after the giver's death. Walter v. Hodge, 2 Swanst. 98. On the other hand, though liable to be defeazanced, it must, subject to such power of revocation, be a complete gift inter vivos [Between the living], and therefore requires no probate, (Ward v. Turner, 2 Ves. Sen. 435. Ashton v. Dawson, Sel. Ca. in Cha. 14;) though a question has been made whether, as such a gift is only to take effect in case of the donor's death, it ought not to be held so far testamentary as to be liable to legacy-duty. Woodbridge v. Spooner, 3 Barn. & Ald. 236.

A donatio mortis causâ [A gift by reason of death] plainly differs from a legacy in this particular: the subject of gift must in the former case be delivered by the donor, in the Îatter case by his representative. Walter v. Hodge, 2 Swanst. 98. So, the distinction between a nuncupative will and a donatio mortis causâ is, that the bounty given in the firstnamed mode is to be received from the executor, but in the latter case may be held against him, and requires no assent on his part, the delivery having been completed by the donor himself. Duffield v. Elwes, I Sim. & Stu. 244. Ward v. Turner, 2 Ves. Sen. 443. The greater number of cases upon this subject have turned on the question of actual tradition of the gift; the general rule, according to which delivery is necessary, is never now disputed; but whether such delivery has or has not been legally completed, or whether the nature of the gift constitutes an exception, exempting it from the general rule, are points which still not unfrequently present debatable ground. Tate v. Hilbert, 2 Ves. Jr. 120. Lawson v. Lawson, I P. Wms. 441. Where actual tradition is impracticable, if the donor proceed as far as the nature of the subject admits towards a transfer of the possession, effect may be given to his intended bounty. Thus, a ship at sea has been held to be virtually delivered by a delivery of the bill of sale thereof, defeasible on the donor's recovery; and delivery of the key of a warehouse or of a trunk has been determined to be a sufficient delivery of the goods in such warehouse and of the contents of the trunk; for in these instances the bill of sale and the keys were not considered as mere symbols, but as the means of obtaining possession of the property. Brown v. Williams, cited in 2 Ves. Sen. 434. Jones v. Selby, as cited ibid. p. 441. A mere symbolical delivery, however, will not be sufficient: therefore there can be no donatio mortis causá of a simple contract-debt, (Gardner v. Parker, 3 Mad. 185,) though there may of a bond, (Snellgrove v. Bailey, 3 Atk. 214;) for, notwithstanding it is a chose en action, some property is conveyed by the delivery. Ward v. Turner, 2 Ves. Sen. 442. But the case of a bonddebt is an exception, not a rule; and where a bond is only a collateral security for a mortgage-debt, the delivery of the bond will not be a complete gift of the mortgage. Duffield v. Elwes, I Sim. & Stu. 244. A check drawn by the donor on a banker, (Tat. v. Hilbert, 4 Br. 291,) or a promissory note payable to him, (Miller v. Miller, 3 P. Wms. 357,) cannot, it seems, be disposed of by way of donatio mortis causa. No banker, indeed, is justified in paying a check after the death of the drawer; and a promissory note, not being a negotiable security payable to the bearer, must come under the same consideration as any other simple contract-debt; and as the amount thereof could only be sued for in the name of the executors, that seems a sufficient reason why it could not be made the subject of a donatio mortis causa. Miller v. Miller, 3 P. Wms. 357. It is to be ob served that although there may have been a complete delivery of the gift, yet, if the possession be not continued in the donee, but the donor resume it, the gift (whether such resumption of possession be intended to have that effect or not) is at an end. Bunn v. Markham, 7 Taunt. 232, S. C. 2 Marsh, 539.-CHITTY.

It was a disputed point among the Roman lawyers whether this donation was to be resembled to a proper gift or a legacy. It appears to have been settled finally in favor of its testamentary character. It resembles a legacy in some respects, but has many points peculiar to itself. Like a legacy, it is revocable at the will of the donor, and, in general, the mere resumption of possession by the donor will amount to such a revocation. It is liable to the debts of the donor, but it would seem, upon principle, although no decision or even dictum to that effect is to be found in the books, it shall wait till all the assets of the testator, including specific and pecuniary legacies, are exhausted, before it is made liable for the debts. Indeed, no case has occurred involving directly the question of its liability for debts; but the law seems clear on this point. It reverts to the donor on the death of the donee before him. It differs from a legacy in the circumstance of immediate tradition of the subject-matter to the donee, or some one for his use. It is a gift in præsenti [In the present] to become absolute in futuro [In the future]. It does not require probate in the ecclesiastical court. It does not wait for the assent of the executor; nor need it be proved by more than one witness. The civil law, however, required five witnesses; but a plurality of witnesses to a fact is not consistent with the

been handed to us from the civil lawyers, () who themselves borrowed it from the Greeks.(m)(156)

7. When all the debts and particular legacies are discharged, the surplus, or residuum, must be paid to the residuary legatee, if any be appointed by the will; and if there be none, it was long a settled notion that it devolved to the executor's own use, by virtue of his executorship. (n) But, whatever ground there might have been formerly for this opinion, it seems now to be understood (o) with this restriction; that although where the executor had no legacy at all the residuum shall in general be his own, yet wherever there is sufficient on the face of a will (by means of a competent legacy or otherwise) to imply that the testator intended his executor should not have the residue, the undevised surplus of the estate shall go to the next of kin(157) the executor then standing upon exactly the same footing as an administrator, concerning whom indeed there formerly was much

(7) Inst. 2, 7, 1. Ff. 1, 39, t. 6.

(m) There is a very complete donatio mortis causa in the Odyssey, b. 17, v. 78, made by Telemachus to his friend Piraus; and another by Hercules, in the Alcestes of Euripides, v. 1020.

(n) Perkins, 525.

[*515

(0) Prec. Cha. 323. 1 P. Wms. 7, 544. 2 P. Wms. 338. 3 P. Wms. 43, 194. Stra. 599. Lawson v. Lawson, Dom. Proc. 28 April, 1777.

analogy of the common law, and is necessary in no civil case except by the express requirement of some statute. It differs from a gift inter vivos [Among the living] in its revocable character and its being subject to debts, which a bona fide gift, accompanied by delivery of possession by a person not indebted at the time, is not. It is distinguished also by the peculiar condition, which is indispensable to its taking effect in this particular form, that if the donor recover, or escape the impending peril, whether it be sickness, battle, or sea-voyage, it shall revert. Such a condition arises by presumption of law whenever the gift is made in extremis [In his last moments]. By the civil law, in case the donor recovered, it returned to him with the immediate profits. Nam deficiente conditione, a principio nihil actum fuisse videtur. The gift is but inchoate, not perfect, until death: the condition failing, it is as though the gift had never been. In Nicholas v. Adams (2 Whart. 17) it was decided that it was not necessary that the donor should be in extremis, as in the case of a nuncupative will. "I would briefly define a donatio causa mortis [A gift by reason of death] to be a conditional gift, dependent on the contingency of expected death. There may, doubtless, be a conditional gift when death is not expected; but in that case the condition would have to be expressed and the contingency specified: in the donatio causa mortis both are implied from the occasion. But it certainly is not requisite that the donor be in such extremity as is requisite to give effect to a nuncupation, which is sustained from necessity merely where the donor was prevented, by the urgency of dissolution, from making a formal bequest. Between these ways of disposition there is not an approximating line. Donatio causa mortis is sometimes spoken of as being distinct from a gift inter vivos,—the former having sometimes been supposed to be made in reference to the donor's death, and not to vest before it, but inaccurately, as it seems to me; as this gift, like every other, is not executory, but executed in the first instance by delivery of the thing, though defeasible by reclamation, the contingency of survivorship, or deliverance from the peril. The donee would certainly not be bound to make compensation for the immediate use of the thing; and, evidently, because the immediate ownership was vested in him. The gift is consequently inter vivos. All agree that it has no property in common with a legacy, except that it is revocable in the donor's lifetime and subject to his debts in the event of a deficiency. The first is, not because the gift is testamentary, but because such is the condition annexed; and the second, not because it is in the nature of a legacy, but because it would otherwise be fraudulent as to creditors; for no man may give his property who is unable to pay his debts. It is decisive that the subject is not within the jurisdiction of the ecclesiastical courts; and the donee consequently takes paramount to the executor or a legatee. For this reason it is that a subsequent will which becomes operative only when the period of reclamation is past, and when the gift has become absolute by the event of the contingency, is not an effective act of revocation.” C. J. Gibson. A mere gift by parol made in the prospect of death, and professing to pass to the donee all of the property of the decedent, is not valid as a donatio causa mortis, though accompanied by delivery. Headley v. Kirby, 6 Harris, 326. If, however, the words of donation have reference only to things given and delivered, and do not extend to other things, it is a good donatio, though it may, in fact, be all the donor had in the world. Michener v. Dale, 11 Harris, 59.-SHARSWOOD. (156) 2 Schoul. on Pers. Prop. (2 ed.) 124.

(157) The right of an executor to a beneficial interest in the assets of his testator, not expressly disposed of, may be excluded, not only by a plain declaration of trust in the will, but by circumstances indicated by the will; in support of which parol evidence may

debate, (p) whether or no he could be compelled to make any listribution

(p) Godolph. p. 2, c. 32.

be given to raise a presumption of trust; as, on the other hand, the executor may adduce evidence to repel such presumption. But, where a conclusive intention is evident on the face of the will, parol evidence cannot be let in on either side. Gladding v. Yapp, 5 Mad. 59. Lynn v. Beaver, I Turn. & Russ. 68. Langham v. Sandford, 2 Meriv. 17. Giraud v. Hanbury, ibid. 153. Pratt v. Sladden, 14 Ves. 197. Walton v. Walton, ibid. 322.

Lord Eldon said he feared there was no possibility of denying now that parol declarations of a testator, both previous and subsequent to the time of making his will, are admissible evidence to repel a legal presumption; but, his lordship added, such declarauons are not all alike weighty and efficacious: a declaration at the time of executing a will is of more consequence than a declaration made afterwards; and a declaration by the testator subsequently to his will, as to what he had done, is entitled to more weight than a declaration before making his will, as to what he intended to do, for he may very well have altered that intention: therefore, although all such declarations are equally admissible, very different degrees of credit and weight are to be attached to them. Trimmer v. Bayne, 7 Ves. 518. Pole v. Lord Somers, 6 Ves. 32. See also Ustricke v. Bawden, 2 Addams, 128. Langham v. Sandford, 2 Meriv. 23.

The proposition, sometimes alleged, that the appointment of an executor gives him every thing not disposed of by the will, is not correct. In the strongest way of putting the executor's right, he can only take what the testator did not mean to dispose of. In the case of a lapse, for instance, the executor would not take a lapsed bequest. So, if a testator appoint an executor in trust, but omit to express the intention of such trust, the executor will not, by virtue of his office, take beneficially. Dawson v. Clarke, 18 Ves. 254, 255. Urquhart v. King, 7 Ves. 228. And where a testator leaves an unfinished clause in his will, this is understood as an indication that he intended to make a further disposition, in exclusion of any claim by his executors. Knewell v. Gardner, Gilb. Eq. Rep. 184. Lord North v. Purdon, 2 Ves. Sen. 496. For the slightest indication of a testator's intention to dispose of the residue of his property is sufficient to exclude his executor, though it may be wholly uncertain what disposition the testator may have intended to make of that residue. Mence v. Mence, 18 Ves. 351. Mordaunt v. Hussey, 4 Ves. 118. Even an intention on the part of a testator to make such a disposition of his residue as should exclude the claims of his next of kin, if it cannot be collected from the evidence that he meant to effect that object by any other mode than an express disposition of the residue, will not turn the scale in favor of the executor. Langham v. Sandford, 17 Ves. 451. The Bishop of Cloyne v, Young, 2 Ves. Sen. 95. Nourse v. Finch, I Ves. Jr. 361. It is true that in the case of Clennel v. Lewthwaite, (2 Ves. Jr. 476,) the bequest of a 'shilling" to the testator's sister was held a material circumstance in exclusion of her claim to any part of his residuary estate, and, coupled with other evidence of intention, it might fairly be deemed some corroboration of that evidence; but it is well settled that mere legacies to the next of kin will not rebut their claim to a residue undisposed of, where the executors would otherwise be held trustees. Griffiths v. Hamilton, 12 Ves. 309. Seely v. Wood, 10 Ves. 75. Langham v. Sandford, 17 Ves. 451. Numerous cases have fully established as a general rule that testamentary words of recommendation, request, or confidence are imperative, and raise a trust, (Paul v. Compton, 8 Ves. 380. Taylor v. George, 2 Ves. & Bea. 378. Parsons v. Baker, 18 Ves. 476. Kirkbank v. Hudson, 7 Pr. 220;) and although the testator's object fails, or is contrary to the policy of the law, or is too vaguely expressed to be capable of being carried into execution, yet, as it was the intent that the executor should only take as trustee, the necessary legal consequence is that there must be a resulting trust for the testator's next of kin. Morice v. The Bishop of Durham, 9 Ves. 405. James v. Allen, 3 Meriv. 19. Vezey v. Jamson, 1 Sim. & Stu. 71. Paice v. The Archbishop of Canterbury, 14 Ves. 370. Where a single executor is named, a legacy of any part of the testator's personal estate to such executor will (unless there are special circumstances) bar his general right as executor to any residue not disposed of by his testator's will. Dicks v. Lambert, 4 Ves. 729. But a legacy to one of several executors, or unequal legacies to more than one, will not exclude the legal title which executors, as such, have to a beneficial interest in the property of their testator, of which he has indicated no intention to make a different disposition: by giving a legacy to one only, or by giving unequal legacies to several, the testator may only have intended a preference pro tanto [For so much]. Rawlings v. Jennings, 13 Ves. 46. Langham v. Sandford, 2 Meriv. 22. Griffiths v. Hamilton, 12 Ves. 309. Sir Wm. Grant, in the case of Seely v. Wood, 10 Ves. 75, expressed a clear opinion that a reversionary interest, after a previous interest for life, would exclude an executor as effectually as a direct and immediate legacy. Lord Eldon, however, without expressly