93 ER 495
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1795 |
| Year | 1795 |
| Date | 01 January 1795 |
| Court | Court of the King's Bench |
English Reports Citation: 93 E.R. 495
COURTS OF CHANCERY, KING'S BENCH, COMMON PLEAS AND EXCHEQUER
harbison vers. buckle. in canc'. If a legacy be devised payable at 21, with interest in the mean time, and the infant dies, his representative may sue for it immediately (1). But if it be devised payable at 21, with maintenance in the mean time, the executor is not entitled to it till the legatee would (2). A. devises to his daughter 10001. payable at her age of twenty-one or day of marriage, and 15001. to his son payable at the age of twenty-four, and a certain maintenance in the mean time ; and all his real estate he devises to trustees, to raise by sale or otherwise sufficient to discharge his debts and legacies, if the personal estate should fall short. A. dies ; the son dies under age ; the daughter marries the defendant, and they join in a suit in the Spiritual Court againat the trustees, who are also executors, for her own legacy of 10001. and as representative of her brother for his 15001. The executors exhibit their bill here, to stop the proceedings in the Spiritual Court, and compel the husband to settle the legacy on the wife. The defendant insists on his right to the legacy, independant of any settlement, he being now in a proper Court for the recovery of it without the assistance of this Court; and that 496 MICHAELMAS TERM, 6 GEO. 1STE1NOE, 239. he is intitled to the 15001. immediately, though the son was not to have it till his age of twenty-four. Upon this two questions arose. 1. Whether this Court could interpose on behalf of the wife, and secure the legacy for a settlement on her. 1. Whether the son's legacy of 15001. is not extinguished by his death before it became due. Or if it subsists, whether his representative is intitled to it sooner than he himself would have been, if he had lived. As to this last point Mr. Vernon said, there had been cases both ways, but were reconcileable on this distinction; where interest of the legacy payable at a certain age has been given to the infant in the mean time, there the money has been held payable to the representative immediately: but where no interest has been given, the money waa not payable till the time the legatee would have arrived at that age. The present case, he said, was a sort of middle way between both : no interest, but some present advantage, viz. maintenance is given. Master of the Rolls. The 15001. given is first and principally a charge on the personal estate, and is an absolute legacy out of that: the real estate is only devised in aid of the personal, nor is [239] it to be sold directly, but only at the discretion of his trustees and executors, to be disposed of so far as the debts and legacies shall require. As this then is not a direct legacy out of the real estate, the death of the party, before it became payable shall not extinguish it (3). And this differs from Pawlefs case, 1 Vent. 366, (Vern. 204, 321, S. C.) where the money was an immediate charge on the land, and to be raised out of that without any regard to the personal estate (4). The son's representative being thus intitled, the next question is as to the time. Had this 15001. carried interest immediately to the infant, though the time of payment of the principal was deferred, yet on his death his representative would have had a right to it immediately : not that he would have been in a better condition than the infant was, since the delay of payment was only by way of caution, but with equal benefit to the legatee. And the executor is not hurt, because on payment of the money the interest ceases. The appointment of maintenance is said to be equivalent to the giving interest, but I think interest carries the whole benefit of the legacy, but maintenance is something distinct and independent of it (5). It is a decent provision during minority, and bounded, not by the profit of the money, but the necessities of his sustenance and education. As to the wife's legacy of 10001. the bill is of an unusual nature. It has indeed been the common course of this Court, to oblige a husband who comes hither in right of his wife for a sum of money, to make a proper settlement on her before it is given him (6); and that, not only in the case of trust money, which can be recovered no where else, but in the ease of legacies too. Though I must say, had this been res integra, 1 should be very cautious, how I went so far as legacies, because there is a proper Court elsewhere for the recovery of them : they originally belonged to the Spiritual Court only, and the sole ground of this Court's intermedling is, the discovery the testator's personal estate. But the present case is different: the persons liable to pay the legacies are plaintiffs here, and not the husband; and whether they would not have been safe in paying the legacy, if they had suffered the Spiritual Court to go on to sentence, I will not say. This seems to have something of the nature of an interpleading bill, wherein the executors call upon the husband and wife to interplead concerning their several rights ; the husband to the money absolutely, and the wife to a proper provision to be secured for herself. And then it will be like the common case, of a husband's coming into this Court to have a legacy against his wife. And I have observed a strong inclination in Lord Cowper's [240] time, to do right to the wife. Since legatory causes are now become part of the jurisdiction of this...
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Philadelphia Boycot, Sophia Cotton, Hester Maria Cotton and Sydney Arabella Cotton, the surviving Daughters of Sir Thomas Cotton, and Philadelphia, his Wife, Plaintiffs; (1) and Sir Robert Salisbury Cotton, and Dame Philadelphia Cotton, his Wife, Lynch Salisbury Cotton, Cotton King, and John Crew, Defendants
...2 P. Wms. 336, unless interest be given upon the legacy, in which case the representative may claim immediately, Harrison v. Buckle, 1 Str. 238. Green v. Pigot, 1 Bro. G. C. 105. Crickett v. Dolby, D. 3 Ves. 10. ...