Roberts v. Malin
| Decision Date | 22 May 1854 |
| Citation | 5 Ind. 35 |
| Parties | Roberts and Others v. Malin and Others |
| Court | Indiana Supreme Court |
ERROR to the Switzerland Circuit Court.
The decree is affirmed with costs.
Ebenezer Dumont, for the plaintiffs.
D Kelso, for the defendants.
Bill in Chancery. Facts admitted, and an answer waived.
William Phillips made his will, and died in 1827, devising, among other things, his homestead in Switzerland county, containing one hundred acres, to his wife, Mary Phillips, during her widowhood, &c., with remainder in fee to his daughter Peggy. The parts of the will necessary to be stated are as follows:
The child with which the wife of the testator was pregnant was born after the death of the testator, named Ann Maria, and arrived at the age of eighteen in September, 1845. Previous to her arriving at that age, she was married to John W. Roberts, one of the plaintiffs in error, who, with the said Ann Maria, on the 6th day of October, 1845, legally assigned and transferred said legacy to Ebenezer Dumont.
Shortly after the death of the testator, the widow, Mary Phillips, married, and gave possession of the homestead to said Peggy, and her husband, Frederick W. Krutz. The widow died, and Krutz and wife, subsequently, but before the commencement of this suit, sold and conveyed the homestead to Edward F. Krutz, Azariah Wiley, and Joseph Malin, in different portions in severalty, who derive their title to said land by virtue of and under said will.
The legacy was demanded after Ann Maria arrived at eighteen, payment refused, and it remains yet unpaid.
F. W. Krutz and wife are both insolvent.
The case was submitted to the Circuit Court at the October term, 1846, the parties "agreeing that the only question in litigation was, whether the legacy to Ann Maria was to draw interest from its date, or since September, 1845."
The Court rendered a decree in favor of Dumont for 106 dollars and 75 cents, charging the land with the payment, &c. The complainants prosecute this writ of error.
Where legacies are made payable in futuro, out of personal estate, the general rule is that no interest will be allowed until after the day of payment, but an exception has been long and well established, in favor of the minor children of testators, where no provision has been made by the will for their maintenance during their minority. Mills v. Wisler, 5 Binney 479; Mitchell v. Bower, 3 Vesey, jr., 287; Tyrrel v. Tyrrel, 4 id. 4; Cricket v. Dolby, 3 id. (Sumner's Ed. with notes,) 17.
The reason of this exception is founded in the moral and legal obligation of parents to provide for the necessities of their offspring, and from the presumption that they do not generally intend to leave their children in destitution and want during the most helpless periods of their infancy.
The counsel for the defendants in error insists that where any provision is made for the maintenance of the legatee, the exception above stated does not apply, and that interest should not be allowed until after the day of payment. The abstract principle, as stated by him, will, no doubt, be found in elementary works, but we apprehend that nearly, if not all the cases, which gave rise to, and which have sustained it, will be found to turn upon the intention of the testator. Any amount, however small, if clearly intended as a provision for maintenance, would destroy the presumption upon which Courts...
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