Spangler's Estate , 9 Watts & Serg. 135 ( 1845 )

The opinion of the Court was delivered by

Gibson, C. J.

The widow would not be entitled to interest from the death on the ground that no provision was made for her immediate support, for she was amply provided for; and it is besides entirely settled by the later decisions that a wife does not stand, as to that, on the footing of a child. She may, in one sense, be said to be a purchaser of a legacy in lieu of dower, inasmuch as it is not entirely gratuitous; but that regards not a question like the present. It is a circumstance of decisive importance in a question of abatement between her and collaterals or perhaps children; as was held in Reed v. Reed, (9 Watts 263), and in many cases there quoted. But where the corpusmf a legacy is interest accruing on a residue after payment of debts, and not the residue itself, it is well settled that unless a contrary intent is collectible from the tenor of the will, the legatee is entitled to all that is made from the death of the testator for the palpable reason that less would otherwise be got than was given. On the other hand, where nothing is accruing, nothing is given in the mean time; and the bequest begins to operate actively only when the fund begins to be productive; and this, in either case, without relation to the rule for the commencement of interest on a pecuniary bequest of principal and not interest. Here the corpus of the bequest is interest itself; but how much of the widow’s third made interest from the death, or any later period, does not appear. Part of it, consisting of her proportion of the stocks, bonds, notes, judgments, mortgages and simple contract debts, must have been immediately productive, and so far she was certainly entitled ; but for all besides, she is entitled from the time when interest was, or ought to have been made. The auditor proceeded on the right principle, but there is reason to think he has given it too wide a sweep. The matter is therefore referred back to him to allow the widow whatever interest, specifically so called, accrued from the time of the death or any subsequent period; and the residue of the report stands affirmed in the mean time.

Referred accordingly