deceased's fhare, and the legacy will not be lapfed.-When a legacy may be extinguished and gone from the legatee by means of a fortune given after the will was made, may be perceived by what has been mentioned under a preceding head, where we have referred to cafes wherein one of two legacies given to the fame perfon, by the fame will, may be a revocation of one of them P. IF a contingent legacy, or legacy depending upon fome event that may or may not happen, be left to any one, this may become a lapfed legacy, although the legatee furvive the teftator; as if a man devife to his daughter 100l. when the fhall be married, or to his fon when he attains his full age; or if he attains the age of twenty-one, and they die before that time, their legacies are lapfed; but it is otherwise if the devife was to them to be paid at their ages of twenty-one; for a legacy to one, to be paid when he attains the age of twenty-one years, is a vested legacy; an intereft which commences in prefenti, or immediately on the death of the teftator, although it be folvendum in futuro, or to be paid in future; and if the legatee furvive the teftator, although he die before that age, his reprefentatives fhall receive the legacy out of the teftator's perfonal eftate, at the fame time it would have become payable if the legatee had lived. This diftinction is borrowed from the civil law; and its adoption in the temporal courts is not fo much owing to its intrinfic equity, as to its having been before adopted by the ecclefiaftical courts. For, fince the chancery has a concurrent jurisdiction with them, in regard to the recovery of legacies, it was reasonable there fhould be a conformity in their determinations, and that the fubject fhould have the fame measure of justice in whatever court he fued. But if fuch legacies be charged upon a real estate, in both cafes they fhall lapfe for the benefit of the heir: for with regard to devises affecting real estate, the ecclefiaftical court hath no concurrent jurif diction '. • 2 Vern..207. P See page 167.-Where a legacy given by a debtor to his creditor may be prefumed a fatisfaction for the debt, fee page 155. Agacy adeemed by the teffator receiving part under a statute of bankruptcy, fee page 205. q Law of Telt. 234. Black. Com. 2 V. 513. To determine the vefting of contingent legacies bequeathed in a variety of forms by different teftators, fuch a number of I fuits have been commenced and profecuted in the court of chancery, even within this last century, it would not only be endles to attempt to enter upon all the particular fubtleties and refine ments into which this doctrine has been fpun out, but likewife inconfonant with the defign of this work; we must therefore refer to the adjudications that have been hereon, the modern cafes whereof being lately collected in 2 P. Will. 612. Note 1. 4 edit, As As to intereft due on contingent legacies, and legacies payable to children when they attain twenty-one years. By lord Chancellor Hardwicke, in a cafe before the court of chancery: Those kind of cafes, how far a legatee, who is not entitled to the payment of the legacy immediately, fhall have intereft in the mean time, depend upon particular circumftances; as upon relationship, upon the neceffities of legatees, and most of them upon the particular penning of wills; fo that there is hardly one cafe which can be cited that is a precedent for another; and although in these cases some things are certain, as where a legacy is given generally at marriage, or at twenty-one, there the vesting and time of payment are the fame, and shall not veft till marriage or twenty-one, being given generally, as when married or attain twenty one, without paid or payable being mentioned; and where a legacy is actually vefted, as being given to an infant payable at 21; in either case it shall not carry interest, unless something is faid in the will that fhews the teftator's intention to give intereft in the mean time. But thofe cafes are fubject to this exception, if it is in the cafe of a child; then, let a teftator give it how he will, either at 21, or at marriage, or payable at twenty-one, or at marriage, and the child has no other provifion, the court will give interest by way of maintenance; for they will not prefume the father fo unnatural as to leave the child destitute . IN the cafe of Chaworth and Hooper, T. 1780, where there was a devise of the refidue to an infant payable at 21, with a remainder over, in case of her dying under that age. The question was, Whether, as the infant died under age, the intereft, from the death of the teftator to that of the infant, fhould go to the infant's reprefentative, or to the remainder-man, that is, the person to whom devised, in case of the infant's dying under twenty-one? By Mr. baron Eyre, for lord chancellor : The whole refidue is here given to the infant; what is to become of the produce? Where Cafe of Heath and Perry, 1744. 3 Atk. 101. would would the use be if it was a specific thing, or the rents if it was land? The intereft is the natural produce. It is not a charge upon any body. The produce must go to the perfon who has the thing liable to be divested: when divested it muft from that moment go to the perfon who comes in; and decreed accordingly. IT hath been determined, that where a legacy is devised generally, and no time ascertained for the payment, and the legatee be an infant, he fhall be paid intereft from the first year after the teftator's death; but if the legatee be of full age, he shall only have interest from the time of his demand after the year; for where no time of payment is fet, it is not payable but upon demand, and the legatee fhall not have intereft but from the time of his demand, except he be an infant, to whom laches or negligence is never imputed. But, where a certain legacy is left, payable at a day certain, it must be paid with interest from that day*. WHERE a legacy is given charged on lands or money in the funds, which yield an immediate profit, and there is no day of payment mentioned, the legacy fhall carry interest from the teftator's death. But where it is charged on the perfonal estate, which cannot be immediately got in, there the legacy bears intereft only from the end of the year after the death of the teftator ".If a legacy be brought into court, and the legatee hath notice of it, fo that it is his fault not to pray to have it, or that the money fhould be put out, in fuch cafe he fhall lofe the intereft from the time the money was brought into court, unless it be put out by the court, which if it is, the legatee fhall have the intereft it yields *. BEFORE an executor or administrator pays a legacy, for which he has one year allowed after the teftator's death, where there is no time limited for paying it, as we have lately feen; he should firft obferve what debts are unpaid, and how far his affets, or what he has of the teftator's eftate will extend to pay them; fecondly, what general or pecuniary legacies are to be paid, and what he has to pay them with, and whether it will be neceffary for any abatement, fpecific legacies not being to abate if there is enough befides to pay the debts; and herein it behoves the executor to be careful, the rule being, that where an executor pays a legacy, the prefumption is, he hath fufficient to pay all legacies, which the court will oblige him if solvent to pay a. If the executor hath made an inventory in fuch manner as heretofore fhewn, and there are not effects fufficient to pay all the legacies, it feems, that before he hath paid any legacy he may retain a ratable part or proportionable deduction from the general legacies, in order to pay them proportionably; and herein he cannot prefer himself, as has been mentioned c. On what stamps the executor is to have a difcharge for the legacy he pays, hath heretofore been shewn ". WITH respect to paying legacies to infants; in a case where the teftatrix gave the bulk of her fortune to her executor upon condition that he paid three feveral legacies of 100l into the hands of three children, within a year after her death, which the executor accordingly paid; one of the children being then 16 years old, another 14, and the youngest 9. And after this the children brought their bill in chancery against the executor to be paid their legacies, fuggefting that the money paid during their infancy had been imbeziled by their father, who was now infolvent, and that this was a fraudulent payment to the father. The executor, in his answer to the bill, denies that he ever knew of this money coming to the father's hands. By lord chancellor Hardwicke: In cafes where the legacies have y Page 205. z Mentioned page 205. a 2 Vez. 194. ↳ Page 37, 38. c Page 202. been been very small, the payment thereof into the hands of minors has been allowed by this court; but in this cafe, notwithstanding the fum is above 1ool, I will not ftrain the rules of this court to make an executor pay it over again. Yet, after his lordship had looked into the cafes, the next day he faid that he found this a very doubtful point; and would not determine it without taking time to confider thereon, unless the executor would agree to give the children fomething; and upon the recommendation of the court, he agrees to give them 50l, to be divided among them, and each fide were to abide by their cofts; and it was made part of the decree that the 5ol was paid by the consent of the parties. If a legacy, when due, be paid to the father of an infant, it is no good payment, and the executor may be obliged in equity to pay it over again; as where a legacy of 100l was devifed to an infant of about ten years of age, and the executor paid it to the father and took his receipt for it; and during fourteen or fifteen years afterwards the fon rested fatisfied, on the father's promising to give him the legacy; yet at length the father and son being joint traders together, became bankrupts, and this legacy of 100l was, amongst other things, affigned by the commiffioners for the benefit of the creditors; whereupon the affignee brought a bill in the court of chancery against the executor for an account and payment thereof. The defendant infifted on the extreme hardship of his cafe if he should be obliged to pay it over again; and that formerly payment to the father was allowed to be good. But the lord chancellor faid, he thought the rule of this court, in not fuffering parents to receive their children's legacies, was founded on very good reason; and therefore, to discountenance and deter others from paying fuch legacies to the parents, he decreed for the plaintiff against the executor f. And where a legacy of 1251 e Cafe of Phillips and Paget, 1740. 2 Atk. 80. f Cafe of Dayley and Tolferry, 3 Bacon's Abr. 484. P 2 was |