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Legacy contin- for her daughter from the general fund of her personal estate: gent, or time of there is another thing observable, the contingency in her will of ture, the lega- the daughter dying before twenty-one: I agree it is a condition tee a child, and subsequent, but it still shews the view of the testatrix, and that

payment fu

no mainte

nance, &c.

given.

Where the rate specified is insufficient, it will be increased.

she saw it might never be her daughter's; and that, therefore, to give her interest would be contrary to the intention of the testatrix. There are several cases where this Court has made a great stretch to give children interest upon legacies, particularly Acherley v. Vernon (k); but that went upon particular circumstances. I am therefore of opinion, that she can have no more interest than the maintenance in the meantime" (1).

Again, in Long v. Long (m), the sum of 15,000l. was secured by settlement to the younger children of Sir James Tilney Long, payable at twenty-one or marriage, with maintenance at the rate of two per cent. till payment. There were three younger children. Sir James Tilney Long by will directed that the portion of each child should be increased to 10,000%; and he directed that the additional sums of 5,000l. should be paid at the same ages, days and times as their respective shares in the 15,000l. under the settlement. The younger children pressed for interest at the rate of four per cent. upon the additional portions; and Lord Loughborough, C. decreed, that two per cent. should be continued upon the increased capital: and after stating the general rule in favour of children, observed, "I do not believe a case can be found where, the child having a provision, the Court has conceived that rule to apply, and a provision upon the circumstances such as is equal to maintain the child. The rule standing so generally, I think I should be establishing a new precedent, by giving four per cent. upon the additional 5,000Z."

But where the legacies are paid into Court, the legatees will be entitled to the entire interest on the money in Court, although the directions in the will were to pay interest by way of maintenance at a less rate (n).

Where the amount specified is insufficient, the Court will allow a reasonable maintenance, the legacy being vested; and notwithstanding the surplus interest be directed to accumulate.

Thus, in Aynsworth v. Pratchett (nn), Thomas Aynsworth gave his real and personal estate to trustees, upon trust to pay his wife

(k) Infra.

(1) Lord Loughborough, inclined to the same opinion in Mitchell v. Bower, 3 Ves. 287.

(m) 3 Ves. 286, note; see also

Bredin v. Bredin, 1 Dr. & W. 494.
(n) Abraham v. Holderness, 6
Jur. 290.

(nn) 13 Ves. 321.

payment fu

for her life, such annual sum as would, with the rents and profits Legacy continof his estate settled upon her, make up 100l. per annum : and gent, or time of upon further trust, by sale or mortgage, to raise and pay to his ture, the legawife, for the maintenance and education of all the children he might have by her, living at his death, 30l. per annum, as long as they should choose to remain under her care. The testator also

directed his trustees to pay to all his daughters living at his death, or born in due time afterwards, when and as they should respectively attain twenty-one, 1,000 each; and he gave the residue equally among his sons John, William and Thomas, and such other sons as he might have by his wife living at his death, equally as tenants in common, &c. with survivorship. William being dead, the surviving children, after the death of the testator, filed their bill for an increase of maintenance. The petition stated their ages, that the annual produce of the real and personal estate, after payment of debts, greatly exceeded the allowance of 30%. each; that they lived with their mother; had no other fortune; that the allowance of 30%. was greatly insufficient; and that the mother's income was only 100l. per annum under the will; and they prayed maintenance from the time past from the death of their father, and to come; and Sir William Grant, M. R., the authorities, made the order; and a reference was directed accordingly.

upon

Again, in Stretch v. Watkins (0), James Stretch, after bequeathing several legacies to his wife, proceeded thus: "To my dearly beloved daughter, Anna Stretch, daughter of my abovesaid wife, I give and bequeath 120l. per annum; (that is to say), the interest of 4,000Z. of my three per cent. consolidated annuities; it is my wish and will, that the interest, as it becomes due, be added to the principal till she attains the age of twenty-one years, except 201. per annum to find her clothes," &c. Then, after a similar bequest to his daughter Mary, the testator adds, "But if my said wife should die before my said above daughters attain the age of twenty-one years, then 50l. per annum may be taken from their annuities to maintain and bring them up to twenty-one years of age;" and he gave the residue to his son James. The mother and daughters, after the testator's death, filed their bill against the executors, and James the infant, and his guardian, praying that their legacies might be transferred to the Accountant General, and that Anna and Mary Stretch might be entitled to the dividends of their respective legacies of

(0) 1 Mad. 253.

tee a child, &c.

and mainte

nance, &c.

given.

payment fu

ture, the legatee a child, &c. and maintenance, &c. given.

Legacy contin- 4,000l. three per cents. during their minorities, and the principal gent, or time of when they attained twenty-one: and that it might be referred to the Master to inquire what would be a proper allowance for maintenance. Sir Thomas Plumer, V. C., decided, that a gift of the interest, without limitation, was a gift of the principal, and that the legacies to the daughters were vested: and it being suggested that the question as to what should be allowed for maintenance had better come on upon petition, his Honor observed, "The decree, then, must be made according to the prayer of the bill, except as to what relates to maintenance, which will come on upon petition. It is admitted, that though the testator has expressly directed an accumulation of the interest (except as to 20%.) arising out of the daughters' legacies, until twenty-one, yet the Court, where the child has a vested interest in the principal, will allow what is necessary for the infant's maintenance" (p).

Exception

where maintenauce is provided out of another fund.

But it may be here observed, that although where maintenance is provided out of another fund, interest will not be given on a legacy, which is payable in futuro; the interest on the amount of the legacy may regulate the quantum of the maintenance, where the amount is not specified.

Thus, in Wynch v. Wynch (q), Alexander Wynch gave to each of his daughters Margery and Frances the sum of 10,000. to be paid at twenty-one or marriage; and he directed his trustees should pay and apply such sum and sums of money out of his personal estate, towards the maintenance and education of his daughters, until their portions should become payable, as his executors should think fit, not exceeding the interest of their respective portions after the rate of four per cent.; and he declared the said legacies should not be considered vested, until payable as aforesaid; but if either of his daughters should die under twenty-one, and unmarried, her legacy was to sink into the residue. The question was, whether the daughters were entitled absolutely to interest at four per cent. on their legacies, or only to a maintenance until they became payable and Lord Alvanley, M. R., said, "It is very clear, that when a father gives a legacy to a child, whether it be a vested legacy or not, it will carry interest from the death of the testator, as a maintenance for the child; but this will be only where no other fund is

(p) And see Fairman v. Green, 10 Ves. 48.

(q) 1 Cox, 433; Donovan v. Need

:

ham, 9 Beav. 164; Bredin v. Bredin, 1 Dru. & W. 494.

payment fu

tee, a child, &c.

nance, &c.

given.

provided for such maintenance; for it is equally clear, that where Legacy continother funds are provided for the maintenance, then, if the legacy gent, or time of be payable at a future day, it shall not carry interest until the ture, the lega day of payment comes, as in the case of a legacy to a perfect and maintestranger. Now here the father has directed that maintenance shall be paid out of his personal estate; if it had been payable out of the interest of the legacies, I should have thought the daughters entitled to what they claim; but as it is, I think they are not entitled to interest on their legacies eo nomine. I therefore declare, that Margery and Frances Wynch are not entitled to interest on their legacies, until the same become payable, but only to maintenance not exceeding four per cent. on their said legacies."

Nor where maintenance is given until a certain event and then to cease, will it be allowed, unless the consent of all persons ultimately entitled can be obtained.

Thus in Kime v. Welfitt (r), the testator directed the interest of the residue of his personal estate to be paid to his wife, for the maintenance of herself and her children, until the death of her father, when the testator directed it should cease and be accumulated for the childrens' benefit, as he understood that his wife's father had by his will made ample provision for them after his decease. The accumulations were to be transferred to the children at twenty-one, with benefit of survivorship on their dying under that age and without issue, and in case they left issue, the issue were to take the deceased parent's share: there was a bequest over to the testator's brothers and sisters, in case all the children died under twenty-one and without issue. The testator died in the lifetime of his wife's father, who shortly afterwards died without making any provision for the wife or children. Under these circumstances, the children claimed an allowance for maintenance, the testator's brothers and sisters consenting, but Sir L. Shadwell, V. C., refused the allowance prayed, on the ground that there might come into existence other claimants, the issue of the children, who would be entitled to the fund, and his Honor said, he was not aware of any case which would authorize him to affect their rights.

Nor where directed to

maintenance

cease at a time specified, the consent of all parties ultimately entitled not being ob

tained.

3. Where the legatee is a child of the testator, and mainte- 3. Where no nance is directed generally, but no specific sum or rate of interest specific sum or on the legacy being mentioned, the Court varies the allowance mentioned, but

(r) 3 Sim. 533.

rate of interest

maintenance given in general terms.

gent, time of payment fu

ture, the legatee a child, &c.

per cent.

Legacy contin- according to circumstances; in some cases allowing four on the whole legacy, in others referring it to the Master to consider the quantum of allowance; and the Court accordingly directs it with regard to the fortune and circumstances of the legatee. This may be collected, as well from the cases which have already been stated, as from those which will be adduced in the next section; and to them may be added the case of Matchwick v. Cock (rr), and Freemantle v. Taylor (s).

and maintenance, &c. given.

4. Where maintenance is given generally at the

discretion of trustees.

In the latter case, Stephen Freemantle, by will, in 1793, reciting that he had 4,000 guineas to dispose of, bequeathed to his son John Freemantle the sum of 2,000l. British, and the remainder to be divided between his two girls; he left the interest of the whole fund to his wife, to be by her applied for the benefit and education of his children, until the girls should be married, or attain twenty-one; at which period they were to be independent, as far as that sum went. The testator subsequently declared that he meant that his wife should receive the benefit of the interest of the 4,000 guineas for her own use entirely until Mrs. Molloy's death, and then, according to the terms specified on the other side, viz., "for the advantage and education of my children, trusting entirely to her honour and affection for her children." The testator's widow married again, and, on the death of Mrs. Molloy, succeeded to a pension. Upon the petition by the three children of the testator, living at the date of the will, praying maintenance, and submitting the question, whether another daughter born after the date of the will, was entitled to maintenance, upon whose behalf also another petition was presented, Sir William Grant, M. R., upon the authority of Matchwick v. Cock, made the order for maintenance upon both petitions.

4. The exception is likewise extended to the case, where maintenance is left to the discretion of trustees, and they refuse it, the mother being of ability, but married to a second husband.

Thus, in Billingsley v. Critchet (t), a bill was filed by the children of John Billingsley against his widow, who was married to the defendant Critchet. J. Billingsley, by will, gave to his children about 4,000l. stock, and, as appears by the argument of the counsel, there was a discretion vested in the trustees of the will either to give an allowance or not, who, upon application, thought such allowance unnecessary. The testator had made a provision

(rr) Stated p. 35.

(s) 15 Ves. 363, and see Fentiman

v. Fentiman, 13 Sim. 171.

(t) 1 Bro. C. C. 267.

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