Beehler v. Smith , 3 Grant 141 ( 1861 )

Strong, J.

This case is not to be distinguished in principle from King v. Diehl, 9 S. & R. 409. The plaintiff came of age before the death of the testator, and the legacy to him was to be considered as given without any designation of the time of payment. It was, ■ therefore, payable one year after the death of the testator, and bore interest from that time. The defendant in error, however, contends that because a part of the legacy was directed to be paid out of the Beehler bonds, and because those bonds bore no interest until April 19, 1844, one-half of the legacy bore no interest until that time. The language of the will was: “I give and bequeath unto my three grandchildren, Elizabeth Beehler, John Wesley Beehler (the plaintiff), and Samuel Beehler, children of my deceased daughter Margaret, one thousand dollars each, to be paid by my said executors when they shall respectively arrive of age, without interest. The money which I advanced Peter Beehler, father of said children of Margaret, and for which I hold his bond, shall form part of the fund for the payment of said legacies to said children; but the same are not- to bear interest until the legacies would bear interest. And I hereby direct my said executors to collect the same from the said Peter Beehler, and to pay the same over to my said grandchildren before mentioned. But should the money so advanced bé lost, the same is not to be made up by my executors or 'paid out of my estate.” These bonds, it is said, amounted to fifteen hundred dollars, the one-half of the aggregate of the three legacies given to the grandchildren. It is unnecessary to inquire whether the legacies were specific or only demonstrative so far as they were directed to be paid out of the Beehler bonds. Certainly they were not specific in the sense that the actual ownership of the bonds was given to the legatees. Some of the cases, however, denominate a legacy specific when it is made payable exclusively out of a designated fund. All this is unimportant in this case. No part of the legacies have fallen, for the bonds have been collected. The legacies were not charged exclusively upon those bonds, nor was any specific part of them thus charged. To each grandchild one thousand dollars was given, payable partly out of the testator’s estate generally, and partly out of the proceeds of the bonds. That the legacy was thus given cannot affect the right of the legatee to interest. Even if the legacy be specific in part, it does not follow that one-half of it is specific, and that half of it might have been paid by turning out the bonds lost or not lost. All that the testator intended was that if the debt from Peter Beehler should be lost, the legacies should abate to the extent of the loss. The will directed, it is true, that the bonds should not bear interest until the legacies would bear interest. This provision was for the relief of the obligor. It was to regulate his interest, not to define when the legatees should be entitled to interest. "We discover nothing in the will which indicates that the entire legacy to the plaintiff was not to bear interest one year after the death of the testator. The assumption of the defendants error cannot be admitted, that when part of a legacy is payable out of a particular fund, the legatee is not entitled to interest unless the fund bears interest.

This view of the case indicates that on the 20th of March, 1840, when the second payment was made on account of the legacy, there remained unpaid the sum of $31 10. We think, however, the plaintiff was concluded by the distribution decreed in the Orphans’ Court. The defendant, as executor of the will of the testator, settled his account in the Orphans’ Court, showing a balance of near five thousand dollars due the estate. Of this balance distribution was ordered and made among the legatees under the will. The report of the auditor making final distribution was confirmed on the 30th of April, 1855. At the audit the plaintiff was present, and was ‘examined as a witness. There he testified that all his legacy had been paid, and the balance was distributed among the other legatees. It is not for him now to assert a claim which he then repudiated, and which, if it had been just, he might have obtained in the Orphans’ Court. There was no error, therefore, in directing a verdict for the defendant.

The judgment is affirmed.