Lawrence v. Lawrence

The question, as regards the period from whence interestr is to he computed upon the four thousand dollars, is, in terms, settled by the decretal order. If we follow the direction in the will respecting the legacy to Catharine L. Lawrence and add interest upon her share from the decease of the testator up to the day of her marriage and consider also that it was intended to place the complainant upon a precisely similar footing, then I think the order is right in allowing her interest ñom the same period of time. The *559will is explicit on the point, and although the period thus fixed upon was anterior to the birth of the complainant, I see no objection, on that account, to her taking the full benefit of the gift as if she had then been born.

An express direction of the testator was necessary to accomplish this : for, otherwise, she could only have had interest from the time of her birth: Rawlins v. Rawlins, 2 Cox, 424.

And this case of Rawlins v. Rawlins could not have been intended to establish as a rule, that the time of the birth is to ho adopted for the computation of interest, where there- is an express recognition of some other period. In Harris v. Lloyd, I Turn. & R. 310, the general rule is stated to be, that where the interest which would arise during the interval of the testator’s death and the coming into existence of the person who is to take, is not expressly disposed of by the will, there it falls into the residue. And the converse must be true, that if the interest during such interval is expressly disposed of, it will not fall into the residue, but belong to whomsoever it is given.

‘ A child en ventre sa mere is capable of taking both real and personal estate, either by -descent, bequest or devise; and in the present instance, I have decided that the complainant is entitled to a legacy of four thousand dollars as a marriage portion, to be paid to her on the day of her marriage, while, in the mean time, she is to have the interest of this sum in the same manner as it is given to Catharine—and which is, from the decease of the testator. The decretal order is, consequently, correctly drawn in this particular.

I am not so certain, however, of the complainant’s being entitled to interest from the same period upon the thirteen thousand dollars which she is to have in lieu of a dwelling house.

If a dwelling house had been devised to her for her natural life, as is the case with the other daughters, it appears to me she would have been entitled to the rents or income only from the time of lier birth. A posthumous child taking lands by descent is not entitled to the rents and profits intermediate, the death of the ancestor and the birth of the child. It is only by -leed of settlement or some express provision in a will or other *560instrument, securing or declaring the mesne profits to belong to a posthumous child, that such child becomes entitled to them during the interval. The law on this subject, as gained from acknowledged principles and adjudged cases, is summarily stated by Mr. Hargrave in his notes to Coke upon Lilt. 11, b. and 55. b. Since it is not clear that the complainant would have been entitled to the rents of a dwelling house from the death of the testator, had one been devised to her in the manner in which they are given to the other daughters, I am of opinion the interest to be allowed her on the thirteen thousand dollars must be computed only from the time of her birth.

(The court then went on to scrutinize a claim made by the son of the testator for commissions.)

All the costs of the present suit were ordered to be paid out of the general residue of the estate.