Robert A. Young, Administrator de bonis non, with Will annexed, of Andrew Young, Appellant, vs. Henry McKinnie, Administrator of Richard McKinnie, Appellee, 5 Fla. 542

DOUGLAS, J., delivered the opinion of the Court. This case was brought up by appeal from the Circuit Court of Jackson County, taken pursuant to the provision of the Sd

section of the act of the last session of our General Assembly, (see Pamplet Laws, 101,) and the first question presented for our consideration, is whether the legacy to Elizabeth Washington McKinnie, under the will of Barney McKinnie, was as to the personalty a vested legacy; and we think it was, and that at her death it passed to Bichard McKinnie, as her sole heir and distributee.

The words of the will are : “It is my will and desire that my property, including lands, tenements, negroes, horses, and stock of every kind, and everything of value that I may die seized and possessed of, shall be equally divided between my wife,- Elizabeth McKinnie, my daughter, Elizbeth Washington, and my son Bichard.” This clause5 standing alone and by itself, it is admitted by the learned counsel who argued the cause for the appellant, imports a present gift; but they contended, with great zeal and ability, that it is controlled by the next clause, in which the testator says : “ It is further my will and desire that all my property be kept together, for the use and benefit of my said wife and children, unless my wife should marry, or my children become of age, in which event, or events, I wish the property divided as above,” and that no interest vested until one of these events occurred; but to this view of the matter we cannot assent.

It renders the first clause entirely nugatory, although, so far as the division is concerned, entirely consistent with it. The first clause amply provides for the division.

The words in the second? “ in which event, or events, I wish the property divided as above,” strike us as redundant, the sole effect of this second clause being, as we think, merely to postpone the division, because the testator believed it would be more beneficial to his wife and children to have the property kept together ; and it is worthy of observation that he gives them at once the vahóle income of the estate — -all the use and benefit of it.

He does not provide for a future division of the income amongst them, or make any other provision for their maintenance, or for the education of his children, or use the terms of striet condition upon which Ch. Justice Runffin, in Anderson vs. Felton et al., Battle N. C. Rep., 58, cited by the learned counsel, laid so much stress. It is a general rule that a legacy shall be taken to vest at the death of the testator, unless manifestly against the intention of the will. 1 Roper on Legacies, (2d American from 4th London Ed.,) 555, 556. The cases, too, of Gaskell vs. Harmon, 6 Ves., 159; Stuart vs.

Bruere, (in note ;) Faulkner vs. Hollingsworth, 8 Ves., 558; Entwistle vs. Markland, and Stilwell vs. Barnard, also cited in 6 Ves., 528, (in note,) very strongly sustain this position. In Packham vs.

Gregory, 4 Hare, 396, cited by Boper to this point, residuary personal estate was bequeathed to trustees, upon trust, to sell, get in and invest it, and pay the interest to the testator’s wife during her widowhood, and tqoon her death, to pay and divide the whole of the trust ftod unto and equally amongst all and every of the testator’s nephews and nieces, share and share alike, within six months after’ they became entitled thereto. Sir James Wigram, T.

C., held that the representatives of one of the nephews, who died in the life time of the tenant for life, were entitled to his share, vested on the death of the testator. In remarking upon the words “pay and divide,” his Honor referred to his decision in Leeming vs. Sherratt, 2 Hare, 34, in which he had carefully considered the effect of those words, and observed that the authorities confirmed his view, that there was no magic in the words pay cmd divide.

Even though there be no other gift than in the direction to pay or distribute infutu/ro, yet if such payment or distribution appear to be postponed, for the convenience of the fund or property, the vesting will not be deferred until the period in question, 1 Jarman on Wills, 763; 1 Roper on Vested Legacies, 557, 558. In the case .before us, the time of division is postponed expressly for the use and benefit of the wife and children of the testator, and the intention is clear that they should immediately have all the use and benefit, all the rents and profits.

The postponement of the division is of his whole estate, and he makes no other provision for the support of his wife and children, or the education of the children, as before stated, except this use arrd benefit, and it cannot be supposed that be intended to leave them penniless.

If this view of the ease he correct then this bequest falls within the principle of that largo class of cases where giving the interest on stock or money bequeathed, vests the stock or capital immediately on the death of the testator, although, by the words of the will, the enjoyment of such stock or principal is postponed to a future period ; and it has in many cases been held that a legacy, to be paid when tbe legatee attains his majority, is vested, though contingent. See Dawson vs. Killett, 1 Brown’s C. C., (Perkins’ Ed.,) 123, note A.; Burnes vs. Allen, Ib., 182, note B.; Carbin vs. Mead, 2 Ashmead, 178.

Richard McKinnie was therefore entitled to all the real estate of which Barney McKinnie died seized and possessed, one third in his own right, one third as heir, of his sister, Elizbeth Washington, who died soon after her father, and one third as heir of his mother, who died in 1837. He was also entitled to two thirds of all the personal property left by Barney McKinnie; one third in his own right, and one' third as heir and distributee of 'his said sister.

Andrew Young took one third only of the personal property in right of hi¡3 wife, the widow of Barney McKinnie; and so much of this one third as he had in his possession, he by his last will and testament, directed to be returned to Richard Mc-Kinnie. By-the first clause, he directed that all his debts and funeral expenses should be paid as soon after his decease as possible, out of the first moneys that should come into the hands of his executors, out of any portion of his estate, real or personal.

The second clause is as follows, vizs ‘‘Also, I direct that all tbe property, real or personal, that I obtained from the estate of Barney McKinnie, deceased, be returned to Richard McKinnie, minor heir of Barney KcKinnie, deceased, or suoh portion thereof as I now have in my possession.” He had previously sold all the real estate, and all the personal property except the negroes. These’were in his possession at tbe date of his will and at the time of his death, and one third of these, which he had received in right of his wife, is, we think, all that he by his will bequeathed to Richard McKinnie.

It appears from evidence in the record, (evidence dehors_the will,) that Mr.Young supposed that he was entitled, in right of his wife, to one half of all the property, real and personal, of the estate of Barney McKinnie, deceased, and it has therefore been contended that this raises a case not strictly of election, but in the nature of election, — a quasi election on the part of Ki chard McKinnie ; but it is difficult to perceive how the doctrine of election could be applied to such a case.

It is, however, a sufficient answer to this position to say that there is nothing upon the face of the will of Toung which seetns to indicate even in the remotest degree an intention on his part to bequeath anything that was not his own.

His intention clearly was that all the property that he had received of the estate of Barney McKinnie, and was then in his possession (in specie,) should be returned to Kichard McKinnie, and that the remainder of his property, which he had aoewnMlated, should be brought into an equal division among his legal heirs, and were we allowed to speculate upon the matter, we see no reason to suppose that he would have made any other provision, if this alleged misapprehension had not existed ; but we are not permitted thus to speculate. 2 Story’s Eq., page 486, sec. 1093, and authorities there cited. In Stratton vs.

Best, 1 Ves., 285, Lord Chancellor Thurlow said: “ All the argument in Noys vs. Mordaunt, (2 Vern., 581,) and the whole suit of cases, have turned upon the expressions in the will. If I were to receive evidence of the testator’s fancy, it would introduce a very desperate rule of property in this Court.” In order to impose upon a party claiming under a will the obligation of making an election, the intention of the testator must be expressed, or clearly implied in the will itself. Roper on Legacies, (2d American from the 4th London Ed.,) 1582 to 1586; 3 Bac.

Abr., (Ed. by Bouvier, 1848,) 316, and authorities there cited; Judd vs. Pratt, 13 Ves., 174, confirmed on appeal, 15 Ves., 390; 1 Jarman on Wills, 391, 392, (and authorities there cited,) 1 Amer. Ed.

Again, it has bepn insisted by the counsel of the appellant that “Young’s bequest to Richard McKinnie is so con? nected with the decrees of the County Court, that if he takes under the will, he takes under the decrees, and hence he is,estopped, until he-renounces his legacy, from alleging that the decrees are void.” However this may be, he is not, we think, estopped from saying that they are erroneous, at least so far as they undertook to pronounce upon the extent of his interest; but if he takes under the sales made pursuant to the orders of the County Court, he may be estopped from saying that the sales are void, because the County Court had no power to make the orders under which the sales took place.

By receiving so much of the proceeds of the sales as properly belong to him, he af? firms the sales; but we do not perceive how by this he affirms anything more, or is prevented from contesting that portion of the decrees of the County Court which declared that-'Young was entitled to one-half of all the property. Such decrees may be good, in part and void in part. It is furthér insisted on behalf of the appellant, that it Richard McKinnie fakes under the will of Young, he must take own onere; that is, that “ the portion given to Me?

Kinnie must contribute to the payment of the debts; not only the portion that actually passed, but what he intended should pass.” We do not think that such was the in? tention of the testator, or that it is the legal import of the ■will, and the surrounding circumstances negative the idea. The direction is : that all his debts and funeral expenses be paid as soon as possible after his decease, out of the first monies that shall come into the hands of his executors, out of any portion of his estate, real or personal.

The natural presumption resulting from this provision is, that he meant such as would naturally first come into the hands of his executors, and from' the proofs in the case, it would appear that there was a lax’ge amount of the monies which resulted from the sales of the McKinnie estate, in the hands of Young at the time of his death. This would be the first to come into the hands of his executors, and next such as would be received upon a sale of the perishable property of his own estate, or fi’om debts due his estate. But aside from this, the bequest to Richard McKinnie was specific.

The remainder was to he equally divided amongst the legal heirs of the testator' — it goes just where it would have gone, if nothing 'had been said in the will about it; and in such a case the law casts the payment of the debts fii’st upon such remainder. 1 Roper on Legacies, 2d Amer., from 4th London Ed., 191, 192, 356 tp 363; 2 Williams on Executors, 972, 973.

The appellant also complains of that portion of the decree of the Courts below which requires the master in stating his account, to “ make anmral rests, charging legal interest on the balance found due at the period of each rest.” Our statute, Thompson’s Digest, page 207, Sec. 9, No. 1, declares that “ it shall be the duty of executors, administrators aud guardians, annually at the first term (of tbe Probate Court), to render a full and correct report of the receipts and expenditures oí all estates of which they may severally have the control.” No. 2, same page, provides, “ that executors, administrators, and guardians, may, by leave of the Court, retain in their possession the money of any minor, paying for the same lawful interest, or shall, under the direction of the Court, put out the money of the minor at interest, upon such mortgage security as said Court shall allow, &c., &c: Provided, That the day of payment of the money so put out at interest, at any time, shall not exceed one year from the date of the obligation or other security given for the same, and also at the end of each year, the interest due, if not paid, be made principal and a new bond or obligation taken, and when the executor, administrator or guardian, retains the . money on interest himself, the same rule shall he observed, the interest being added to the principal annually, hut ex* ecutors, administrators, and guardians, shall not he liable to pay interest, except on the surplus of the estate of the deceased remaining in their hands, cmd unemployed as aforesaid, after the settlement of their accounts.” Duval’s Compilation, 117.

That portion of the decree complained of in relation to this matter, was doubtless intended by the learned Judge ' who made it, to meet this peculiar provision of the statute, to which of course, we are bound to adhere: but without ■such a statute, we should have doubted the propriety in a case like this, of applying so stringent a rule. The general rule of the Courts is not to allow compound iuterést.

Hoffman’s Master in Chy., 109. “ There may (he says, page 104,) be a case of such gross violation, in an executor, of duty imposed upon him by the will, as to lead tbe Court to allow compound interest; but it is singular, that in the whole range of English decisions upon the un„ warrantable conduct of executors, in all varieties, there is but a solitary case giving compound interest, and that placed by the Court upon the peculiarity of the trust.” In this country, cases can be found where compound interest has been given, but they are generally if not universally» foiinded upon some peculiar cause, and the general rule deducible from the cases here, is believed to be the same as in England.

In the case of the State of Connecticut, vs. Jackson, 1 John. Chy. Rep. 14, the Chancellor? says, “ Except in some special cases, interest upon interest is not allowed, and the uniform course of decisions io against it, as being a hard and oppressive exaction, tending to usury.” In Black vs. Blakely, 2 McCord’s Chy. Rep., 9, 10, this case was cited and approved, and Mr. Justice Nott, who delivered the opinion of the Court, said: “ I have never known it (compo%md interest), allowed on a mere neglect to pay over money.” In Teague vs.

Dendy, Ibidem, 207, it is said that an administrator will be charged with interest only upon the annual balances retained in his hands; and in Darrell vs. Eden, 3 DeSaussure, 241, that an executor who has unnecessarily kept money of an estate in his hands, which might have been rendered productive, will be charged with interest on the annual balances. It will occur, in a large class of accounts, (says Mr.

Hoffman, page 107,) that the mode of stating, by-giving interest upon each sum from the moment it is charged, will make the amount against the accounting parity greater than by compounding interest at the end of each year; that is, by carrying the interest upon the balance found at the beginning of a year, into the balance struck at its close, and computing interest for the next upon the whole; no interest being computed upon the sums when received, This is evidently the method intended by our statute ; and Mr.

Hoffman, before cited, says : “ It is clear that when compound interest is charged, that is the only allowable mode of doing it.” The decree in Raphael vs. Boehm, 11 Ves., 92, 111 and 112, the solita/ry case before mentioned, gave interest upon sums from the time of reception, and then half yearly rests for the purpose of compounding.

And in the former as well as the latter particular, Lord Eldon, that eminent Chancellor, who, for more than twenty years,'held the great seal of England, censures that decree, stating that it was peculiar in these points, and was expressed in terms which he hoped would never be found in a decree again.

We find in thó record the following statement of facts, signed by the counsel of the respective parties, to-wit: “ That after the division of the negroes belonging to the estate of Barney McEinnie, between Andrew Young, in right of his wife, aud complainant, on the 29th January, 1835, and before the date of Andrew Young’s will, two negroes, Tom and Amanda, were born of Jenny, a negro woman assigned to Andrew Young on the said division, who are still alive, and that after the death of Andrew Young) said negroes were delivered over by his executor, John Brett, to Henry McEinnie, as guardian of complainant, under the impression that they were embraced in the bequest of said Young to the complainant.” In that impression we have no hesitation in saying that Mr.

Brett was mistaken. They were not embraced in the bequest to Henry McEinnie, but were the property of the estate of said Young, part of the accumulation spoken of by him, and if they^were not needed to pay his debts or funeral expenses, they passed with the remainder of his estate to his legal heirs.

Théy were not a portion of the property which he had obtained from the estate of Barney McEinnie, but .were “ servants boom in his house” We are aware of and recognize the rule, “ JPartus seqwtow ventrem,” which has been so forcibly pressed upon our attention by the counsel for the appellee, and admit that in ordinary cases the issue follows the mother, but we think it does not apply to this case. Here the intention of the testator, as declared in his will, must govern.

If we could travel out of it, and seek evidence of that intention dehors that instrument, we might perhaps find a different intention ; but we feel ourselves constrained upon this, as upon the question of ■election, to confine ourselves to the will, and not to speculate upon the testator’s intention, not therein expressed or clearly implied. This we deem the safest rule. The first, second, third, fourth and sixth clauses of die decree we consider right, and they are therefore affirmed.

The fifth is erroneous, and is consequently reversed, ami a decree must be entered by the Court below, awarding tho two slaves, Tom and Amanda, in the said fifth clause mentioned, to the appellant.

At the time of the intermarriage of the said Andrew Young with said Elizabeth McKinnie, widow of said Harney McKinnie, (which it appears,by the pleadings in this cause, took place in the fall of the year 1834,) said Young became entitled, in right of his wife, to that portion of the personal estate, including slaves, to-wit: one third thereof, which he, the said Barney McKinnie, by bis last will and testament, bequeathed to bis wife, the said Elizabeth Mc-Kinnie.

For this portion of one-third, tho said Young was not liable to account; nor was he liable to account, during the life time of his said wife, Elizabeth, for the use or hire of the same one third of the said slaves, or for the use or rent of the one third of the real estate of his said wife, of which she was seized by virtue of the devise of it to her by the said last will and testament of the said Barney Mc-Kinnie.

But for the use or bire of the said one third of the said slaves, since the death of the said Young, the appellant is liable to account; and the said Young, in his life time, was, and the said appellant is, liable to account for the use and bire of the other two thirds of the said slaves ; and the said Young was also liable to account for the rents and profits of the two-thirds of the real estate of the said Barney McKinnie, of which he became possessed in right of Henry McKinnie, who had becotne seized thereof as aforesaid, up to the time of the death of his said wife, Elizabeth, and also for the rents and profits of the whole of the, said real estate from the time of the death of the said Elizabeth to the time of the sale thereof, in the year 1840; and the said Young was also liable to account after the said sale to the time of bis death, and the said appellant has, since the death of said Young, been and still is liable to account for the whole of the proceeds of all the real estate which was of the said Barney McKinnie, deceased, which was sold by the said Young, together with all the interest that has accrued on the said proceeds of the said real estate since the said sale thereof.

In taking the account for the hire of the slaves, the estate of said Young should be credited with the hire of the said Tom and Amanda, since the timé of their delivery by John Brett, Executor, &c.) to the guardian of Henry McKinnie, and .in taking the account of the hires of the slaves, a due allowance should be made for clothing said slaves, for loss of time by sickness or other casualties, and for the support and maintenance of such of them as by reason of infancy, old age, or other cause, were unable to earn a livelihood. ' We. do not doubt that the learned Judge who made the decree in the Court below, intended that'the seventh clause thereof should be so construed as that the account might be taken in the manner we have indicated, except as to the Jwp slaves Tom and Amanda; but as from the general terms in which this clause is expressed, the master might perhaps, in some particulars, construe it differently, we have considered it proper to add this much, as explanatory of our .views in regard to it. - From tbe peculiarity of this caso, tbe decree being in part sustained, and in part reserved, and the fact that both of the parties are administrators, we deem it right and just not to'decree costs in favor of either, but to leave each party to pay his own costs. -Bet the case be remanded to the Court.below, for further proceedings in accordance with this opinion.

Per toiam Curiam.