The opinion of the court was delivered,
by Williams, J.This was an amicable action brought by Abraham Bosler, administrator de bonis non cum testamento annexo of Nathan Woods, deceased, against David S. Kerr, administrator of N. J. Ramsey Woods, deceased, who was executor of Nathan Woods, to recover the sum of $5000 admitted to be in the hands of the defendant’s intestate at the time of his death, but which it was alleged that 'he had a right to retain under the provisions of the testator’s will. The court below, on the case stated, entered judgment in favor of the plaintiff against the defendant for the sum admitted to be in his intestate’s hands, with interest, and appointed an auditor to ascertain and liquidate the amount due. The entry of this judgment is assigned as error here. Was the plaintiff entitled to recover the moneys in the hands of the deceased executor, with interest, on the facts agreed on and stated by the parties for the opinion of the court ? If the moneys in his hands belonged to the estate of Nathan Woods, then the plaintiff, under the express provisions of the Act of 24th of February 1834, sect. 31, Pamph. L. 78, Bright. Purd. 287, was entitled to demand and recover the same; and the fact that the intestate had fully administered and settled the estate of his testator and filed a full account of his administration thereof, which had been referred to an auditor whose report had been confirmed, so far from constituting a defence to the action, was, under the provisions of the act, indispensably necessary in order to authorize the court to render judgment for the balance in the intestate’s hands.
But it is insisted that the moneys in the hands of the intestate did not belong to the estate of the testator, but to his granddaughter, Martha Jane Stewart, to whom he gave and bequeathed the sum of $5000 to be paid to her when she should arrive at the age of twenty-one years, and, therefore, the plaintiff was not entitled to recover. The case stated does not find that the executor, at the time of his death, held the $5000 in trust for the testator’s granddaughter, Martha Jane Stewart, as her testamentary guardian or trustee. It is nowhere averred, in the ease stated, that he had actually set apart the $5000, and was hold*187ing it for her use. Nor can it be inferred, as a matter of fact, from any of the averments or admissions therein. On the contrary the allegation that he held it in trust for the testator’s granddaughter is inconsistent with the claim set up in the case stated “that It.- 0. Woods, Margaret Woods and D. T. Kerr, the defendant, for the estate of his intestate, claim to be paid the interest on the aforesaid sum of $5000 during the minority of the said Martha Jane Stuart, and that the principal thereof forms part of the estate of the said Nathan Woods, deceased, unadministered, to which the plaintiff is entitled.” This claim, as it seems to us, is a virtual admission that the intestate did not hold the moneys in his hands as the testamentary guardian of Martha Jane Stuart, but as the executor of Nathan Woods, his testator; though it may, perhaps, have not been so intended. Supposing that no such admission was intended, is there anything in the facts of the case from which a legal inference would arise that the money in the hands of the intestate belonged to the testator’s granddaughter under the provisions of his will; and that it did not constitute a part of the testator’s undistributed estate ? If such an inference -is possible, it can only arise from the fact that the intestate had. fully administered the estate of the testator, and had distributed and paid over to the creditors and legatees entitled thereto, under the provisions of his will, all the moneys, with the exception of the $5000 in controversy, which came into his hands; and that under the bequest in the will the amount remaining in his hands belonged to the testator’s granddaughter, and to the possession of which she would be entitled on arriving at the age of twenty-one years. Was Martha Jane Stuart then entitled to the $5000 in the hands of the executor at the time of his death, with the interest which had accumulated thereon? She may possibly have been, if she was entitled to interest on the legacy bequeathed to her from the time the money came into the executor’s hands. But if she was not entitled to interest on her legacy, then the whole fund in the hands of the exechtor did not belong to her, and he had no right to hold it for her use. The legacy, although vested, was not payable until the legatee should arrive at the age of twenty-one years; and under the ruling of this court in Leech’s Appeal, 8 Wright 140, it is clear that she is not entitled to interest on the legacy of $5000 payable at her majority. As a general rule a legacy bears no interest until the time it becomes payable by the terms of the bequest: Magoffin’s Admr. v. Patton, 4 Rawle 113; Laporte v. Bishop, 11 Harris 154; but the rule is subject to the exception, as well settled as the rule itself, that where the legacy is to a minor child of the testator, or other infant legatee to whom the testator has placed himself in loco parentis, and who has no other means of support, interest will be allowed: Miles v. Wister, 5 *188Binn. 479 ; Magoffin v. Patton, supra; Seibert’s Appeal, 7 Harris 49; Bowman’s Appeal, 10 Casey 19; Clark’s Ex’rs. v. Wallace, 12 Wright 80. But here, if any such relation of the testator to the legatee is shown, there are no such circumstances of destitution and dependence as seem to' demand interest, and to support the supposition that it was intended. On the contrary, it is admitted that the legatee’s father is a farmer in comfortable and easy circumstances, abundantly able to support his children in any way he thinks proper. Besides the testator, as the will shows, made other provision for the legatee’s maintenance by directing that the interest on the residuary legacy bequeathed to her should be paid annually to his daughter Margaret, to be expended hy her in the support and education of his granddaughter, and it does not appear from the case stated, nor is it alleged that it is insufficient for the purpose. This provision repels and negatives the inference that the legacy in question was intended to bear interest. And there is another provision in the will which shows that the testator did not intend that interest should be allowed on the legacy. He does not direct the executor to set apart and retain in his hands $5000 for its payment before distributing the moneys which should come into his hands belonging to his estate. But he provides that the moneys coming into the executor’s hands, “ after retaining a sum sufficient to pay the legacy bequeathed to his granddaughter,” shall be divided into equal shares and paid share and share alike to the legatees named in his will.
It may have been proper for the executor under the circumstances to retain $5000 in his hands for the purpose of paying the legacy bequeathed to the testator’s granddaughter when she should arrive at the age of twenty-one years, but it was his duty to invest the money on interest for the benefit of the residuary legatees, and to pay the same to them as it accrued. He had no right, under the provisions of the will, to set apart and retain the sum of $5000 and to invest the same on interest for the use of the testator’s granddaughter; and there is no evidence that he held, or that he intended to hold the sum which he retained in his hands, with its interest, for her sole use and benefit. It clearly belonged to the estate of the testator, and the plaintiff as his administrator de bonis -non, &c., was entitled to demand and recover it from his legal representative.
The question of its distribution does not arise in this case, and it would be out of place to discuss it here.
Judgment affirmed.