The right of the plaintiffs to recover their legacies from any of the defendants, except W. Lupton, the executor, will depend upon the decision of these two points:—
1. Whether the legacies were a charge upon the real estate:
2. Whether the executor who received, and afterwards wasted them, and charged them, on a settlement with the other representatives of the testator, is not exclusively responsible.
[ * 623 ]
1. The legacies were not specific, but common pecuniary legacies. This character of them cannot well be mistaken, (9 Vesey, 180. 11 Vesey, 607.) The testator bequeaths the sum of 500 pounds to each of the plaintiffs, when they attain the age of 21, and the like sum to each of them, when they attain the age of 25. These legacies *have been partly paid by the executors, but the amount now due is not material on the questions raised. The only part of the will that gives any color to the construction that these legacies were intended to be a charge upon the land, is the clause which gives the residuary estate to the defendants, or those under whom they claim, and which is in these words : “ I give, devise and bequeath, &c. all the rest, residue, and remainder of my real and personal estate, not herein before already devised or bequeathed.”
The real estate is not charged with the payment of legacies, unless so expressly declared by the testator, or that intention is c!earljr deducible irom the language and dispositions of the will. The usual clause devising the residue or real and personal estate, not before devised, does not imply that the real estate is to be charged. if the real estate is devised, i( after payment of debts and legacies," it is then charged with them. A mere direction to pay debts and legacies does not create a charge on the real estate.This clause does not appear to me to afford evidence of an intention to charge the land with these pecuniary legacies.
The real estate is not, as of course, charged with the payment of legacies. It is never charged unless the testator intended it should be, and that intention must be either expressly declared, or fairly and satisfactorily inferred, from the language and disposition of the will. This general rule does not seem to admit of dispute. If that residuary clause created such a charge, the charge would have existed in almost every case, for it is the usual clause, and a kind of formula in wills. It means, only, when taken distributively, reddendo singula singulis, that the rest of the personal estate, not before bequeathed, is given to the residuary legatees, and that the remainder of the real estate, not before devised, is in like manner disposed of. It means that the testator does not intend to die intestate as to any part of his property, and it generally means nothing more.
[ * 624 ]
When the real estate is charged, and not in the most explicit and direct terms, it is usually done in terms that indicate a pretty clear intention that the legacies were, at all events, to be paid. Thus, where the testator devises the real estate, after payment of debts and legacies, as in Tompkins v. Tompkins, (Prec. in Chan. 397.) and in Shallcross v. Finder, (3 Vesey, 738.) or where he devises the real estate, after a direction that debts and legacies be *first paid, as in Holt v. Vernon, (Prec. in Ch. 430.) and in Williams v. Chitty, (3 Vesey, 545.) the real estate has been held to be charged. It is not sufficient that debts or legacies are directed to be paid. That alone does not create the charge, but they must be directed to be first, or previously paid, or the devise declared to be made after they are paid.
There is no such language here, and the plaintiffs are driven to rely on the residuary clause. Sir Joseph Jekyll (3 Atk. 626. note,) said, that when the testator said, all the residue of my personal estate I give, he meant the residue of what he had not before specifically devised, and not the residue after debts paid.
*624[*625]
*623In Brudenell v. Boughton, (2 Atk. 268.) the testator gave pecuniary legacies, and then devised the remainder of his estate, real and personal, after payment of his just debts and legacies; and Lord Chancellor Hardwicke held, that the latter words created a charge upon the land, as a collateral security, after the personal estate had been applied and exhausted. This decision was in conformity with all the cases; but the case contains some further observations, for it appears that the testator had revoked that will, and by another, gave pecuniary legacies to the same persons, reduced one half, and *624then added, “ I give to S. all the rest of my estate, real and personal.” The chancellor thought, upon the whole, and after some difficulty, that the legacies in the latter will were, also, a charge; and though the case wants some perspicuity, yet it appears to me to be evident that the two wills were taken and compared together in drawing that conclusion. Lord Hardwicke said, that he considered the legacies under the second will, as part of the money given by the first, only new modelled, or qualified, or equally a charge. We have no reason to conclude, that if the intention to charge the land with those legacies had not distinctly and clearly appeared in the first will, that he would have deemed the legacies a *charge on the real estate by the words of the second will. The prior will, here, gave a construction to the latter. So, in Hannis v. Packer, (Ambler, 556.) the real estate was well charged by the devise of the residue of the real and personal estate after payment of debts and legacies, and the testator there, by a codicil unwitnessed, desired the devisees to give 200Z. to B., and this legacy in the codicil, though not charged there, was held to be charged by force of the prior will.
An executor against whom the bill has been taken pro confesso, in a suit by legatees, is a competentBut it is sufficient to cite the case of Keeling v. Brown, (5 Vesey, 359.) to show that the construction of this residuary clause is perfectly well settled. The will there directed the debts and funeral expenses to be paid, and then devised several parts of his real estate. The testator then gave pecuniary legacies, and, “ as to all the rest, residue, and remainder of his estate and effects whatsoever, whether real or personal,” he gave and devised it to B. It was agreed by the counsel on both sides, that the legacies were not charged upon the real estate, and the master of the rolls considered it to be a point exceedingly clear.
It appears to me, that a decision on this point settles the case, and that if the real estate was not charged, the devisees of that estate are not to be disturbed. But it may be inferred from the proof, that these defendants, on a settlement with the executor, took some small part, a scintilla, of the personal estate, sufficient to call them to an account. I am inclined to think, however, from the facts in the case, that the plaintiffs are bound, at all events, under any construction of the will, to look exclusively to the executor.
[ * 626 ]
2. As William Lupton, the executor, has suffered the bill to be taken pro confesso, and admits himself to be answerable for the legacies claimed, he has no interest in the questions between the other parties to the suit. He has received the amount of the legacies, and is bound to refund, either to one party or the other. He, therefore, *stands indifferent, or, at *626least, he has no interest in the success of the defence, and is a competent witness for the defendants. I should rather think that Roosevelt, the guardian ad litem, is also a competent witness. (Dickens,181. Wyatt's P. R. 419.) He can only be liable for costs, and that is a matter of discretion, and depends upon the fact of misbehavior. When infants are sued, some person must appear for them-, ad litem. It is an act of necessity and good will, and such a guardian is not, of course, chargeable with costs, though the defence should fail. He has no certain and fixed interest in the cause. But the question on his competency is not material, for the same facts which he testifies to are proved by others.
witness for the other defendants, or devisees. It seems, that a guardian ad litem, is a competent witness, he being, at most, liable for costs only, and that not of course, but in the discretion of the Court, according to the circumstances. If an executor pays one legatee, and there is, after-wards, a deficiency of assets to pay the others, the legatee, so paid, must refund a proportionable part of what he has received. But if the deficiency of assets has been occasioned by the waste of the executor, the legatee who is paid shall ietain the advantage gained by his legal diligence) yet, m favor of a creditor, he must refund.*626The substance of the testimony, in reference to the second point, is, that the testator left no debts, and that the personal estate which came to the hands of the executors, was equal, and more than equal, to the payment of the legacies. That the plaintiffs, during their respective minorities, were principally supported and educated by the executors; that the real estate in the city of New-York was sold under the partition act, and the proceeds divided among the devisees. That, on a settlement between William Lupton, the surviving executor, and the other defendants, as residuary legatees under their parents, those defendants were charged with their proportion of the legacies due the plaintiffs, and of the expenses of their maintenance and education, and the amount was retained by the executors, with the assent of the defendants. This settlement puts an end to the claim of the plaintiffs on any other person than the executor.
[ * 627 ]
There is a distinction, running through the cases, between an original deficiency of assets, and where the assets were sufficient, but had been wasted by the executor. In the former case, a legatee, who has been paid more than his proportion, under the deficiency, must refund; but in the latter case, he is not obliged to, for he has received no more than what *was due to him, and the other legatees must look to the executor. The legatee, who has been paid, shall retain the advantage of his legal diligence. This rule was so laid down by Sir Joseph Jekyll, in 1 P. Wms. 495. (anon.) but it does not apply where a creditor, instead of a legatee, is in question. On a waste by the executor, a legatee who has been paid, must refund in behalf of a creditor. (Eyre, chief baron, in Hardwicke v. Mynd, 1 Anst. 112. Anon. 1 Vern. 162.) But the authorities stop here; and the case of Walcott v. Hall, (2 Bro. 305.) is. such a clear and solemn adjudication on this point, as to place it beyond all further-controversy. There was a legacy, in that case, of 501. given to the plaintiff and payable at the age of 21, and the interest, *627in the mean time, to be applied to his maintenance. The residue of the personal estate was given to the defendants. The executor retained the legacy for the plaintiff, and paid over the residue to the residuary legatees, and then became a bankrupt. On a bill filed against the executor, and the residuary legatees, Lord Kenyon, who was then master of the rolls, declared that the residuary legatees were not liable ; for they had received no more than they were entitled to, and the party must rest on the devastavit, and he dismissed the bill. This case is very much in point, and is, of itself, decisive.
A legatee may compel the executor to bring into Court money in his hands, or to give security, when the legacy is payable at a future day. The personal estate is the proper fund to pay debts and legacies, and is to be first applied, though the real estate *.e charged. A legacy, tayable at a uture day, does iot carrj- inter-st, until after it s payable; un3ss in the case >f a legacy to . child, where he parent has lade no other irovision for its maintenance.[*628]
A legatee, who uses due diligence, can usually secure himself, and a co-legatee ought not to suffer for his negligence, or stand security for an executor. The Court of Chancery will no doubt, (and cases to this point were referred to by Lord Thurlow, in 1 Bro. 105.) on proper application, compel an executor to bring in money acknowledged to be in his hands, or give security for a legacy, payable at a future day. There is a case, in 1 Salk. 153, (which was referred to by Baron Graham, in Omerod v. Hardman, 5 Vesey, 736.) and also the case of Morgan v. Morgan, cited in 2 Eq. Cas. Abr. 7., both of which were cases in the house of lords, in which it was decided, *that if trustees waste a fund raised out of the real estate to pay debts and legacies, or if executors waste a fund out of the personal estate, the real estate, in the one case, is not to be charged with a burden which it has borne once, and in the other, it is said, that the heir is not to suffer for the devastavit of the executor.
The personal estate is the proper fund to pay debts and legacies, and in general it is first to be applied, though the real estate may be charged.
*628[ * 629 ]
*627There is then, no foundation, on any view of the subject, for the suit against any of the defendants, except William Lupton, the executor; and the bill, as to the rest of them, ought to be dismissed; and following the case of Walcott v. Hall, I shall dismiss the bill without costs. But the plaintiffs are entitled to such decree as their bill will warrant, against William Lupton; and, as they may wish to take a decree against him, there must, in that case, be a reference, to ascertain the precise amount of the legacies due, with interest from the times they were respectively payable. With respect to the question of interest, it may be proper to observe, that the general rule is, that a legacy payable at a future day does not carry interest, until after it is payable, unless it be a legacy to a child, payable at a future day, and the child has no other provision, nor any maintenance, in the mean time, allotted by the will. If there be no such provision, *628the legacy carries interest immediately, on the presumption that the parent must have intended that the child should, in the mean time, be maintained at his expense; but this implication is destroyed, if any provision, however small, be made for maintenance. (Lord Redesdale, in Ellis v. Ellis, 1 Sch. & Lef. 5. Lord Hardwicke, in Hearle v. Greenbank, 3 Atk. 716. Harvey v. Harvey, 2 P. Wms. 21. Crickett v. Dolby, 3 Vesey, 10.) But the better opinion, or rather the weight of authority is, that even this humane presumption does not apply to the case of grandchildren, and that there *must be something special in the will, for that purpose, in case of a grandchild, or a legacy payable at a future day, will not carry interest. (Houghton v. Harrison, 2 Atk. 329. Butler v. Freeman, 3 Atk. 58. Lord Eldon, in 6 Vesey, 546. and Van Bramer v. Executors of Hoffman, 2 Johns. Cas. 200. and the case cited in 1 Sch. & Lef. 5. against the opinion of Lord Alvanley, in 3 Vesey, 12. and the doubt expressed in 12 Vesey, 23.) In this case there is no pretence for interest, eo nomine, before the legacies were due, but a maintenance was directed out of the interest and rents of the estate given them, and beyond such a reasonable maintenance, at the discretion of the executors, they were not entitled.
Butit seems¡ that this excepextend^to the case otagrandchM"The bill was accordingly dismissed as to all the defendants, except William Lupton, without costs, and a decree, as to him, that he pay the balance of the legacies due, with interest, from the times they were payable, together with the costs of the suit, as against him, and that a reference be had to a master, to ascertain the amount due.
The following decree was entered:—■
[ * 630 ]
“ That the plaintiffs’ bill stand dismissed, as against all the defendants, except the defendant William Lupton, without costs, (fee.; and that the plaintiffs are entitled to recover from the defendant W. L. the arrears of the legacies devised to them respectively, in and by the last will and testament of their grandfather, William Lupton, deceased, and in the pleadings set forth with interest thereon, from the times the said legacies respectively became payable, and the costs of this suit to be taxed; and for the purpose of ascertaining how much is due to the plaintiffs respectively, for the legacies bequeathed as aforesaid, and the interest thereon, it is further ordered, that it be referred to a master in chancery, to ascertain, compute, and report what is due to the plaintiffs, and to each of them, for the legacies aforesaid, and the interest thereon to be computed as aforesaid, and that the ^master report thereon with all convenient speed. And, inasmuch as the said defendant W. L. has not appeared to the plaintiffs’ bill, nor defended this suit, and the plaintiffs are, therefore, entitled to proceed before the master, ex parte, *630it is, therefore, further ordered, that upon the master’s report being filed, the same may be confirmed in eight days, by an order to be entered for that purpose, unless the said shall appear before the master, gratis, and shall also, within the said eight days, show cause against such confirmation, by filing exceptions thereto; and that, if the said report shall be filed and confirmed as aforesaid, then the plaintiffs may proceed, and have their costs of this suit taxed, and they shall then be entitled to execution, jointly or separately, against the said W. L., for the amount of the said master’s report, with interest thereon from the date of the same, and the costs of this suit to be taxed as aforesaid, according to law, and the course of this Court.”