The opinion of the court was delivered by
Yeaztsy, J.The question is as to the proper construction of the provisions of the will of Nathan Cushing, de*396ceased, in behalf of his wife. He first willed her $1,000; then follows the principal clause in controversy, viz.:
“I also give and bequeath to my said wife the whole interest and income of $6,000 to be paid to her each and every year during her life, the first payment to be made at the close of one year after my decease, and so on annually thereafter as long as she shall live. And if said interest or income shall at any time prove insufficient to support her in a manner becoming her station and condition in life, and in such manner as shall make her comfortable, and meet all necessary expenses of a reasonably prudent course of life, then it is my will that so much of the said $6,000 shall be taken as shall be necessary to effect the object aforesaid.”
He then gives his wife certain household furniture and clothing, and, after other provisions in her behalf, he provides that these “bequests and provisions” were to be upon condition that she should relinquish and waive her right to dower and assignment of any other personal property to her. He then makes bequests to others, but not sufficient to exhaust his estate, and then disposes of the residue to his children. He then provides that his personal estate shall be sold, and the real estate sold or rented, as shall be for the best interests of all concerned, “and shall enable him” (the executor) “to raise funds to pay debts, legacies, and necessary expenses.”
He died leaving an estate of some $30,000.
We think it is very clear that it was the intention of the testator, by the provision for his wife above quoted in full, to give her the whole of the interest and income of $6,000 during her life for her support, without deduction of taxes or expenses. The language of the provision imports this, and such construction is strongly aided by the other provisions alluded to, and by the circumstances of his estate and condition. This intent, being manifest from the words of the will as a whole, must be followed, — Richard*397son v. Paige, 54 Vt. 373, — there being no other provision inconsistent with this one creating a legal impossibility that the two can subsist together. Hibbard v. Hurlburt, 10 Vt. 173.
But it is claimed that the testator provided an annuity for his wife, and as, at the common law, annuities are not apportionable, and as we have no statute making them so, her executor, she being dead, had no right to the interest on the $6,000 which had accrued during the portion of the last year of her life previous to her decease, the provision for the payment of the interest being that it should be paid annually.
Treating this as an annuity, the proposition is sound that “ annuities are not in their nature apportionable either in law or in equity.” 2 Williams Ex. 835. But there are exceptions to the rule, and the same author says: “ With respect to interest, — interest being due de die in diem is not one entire thing, but an aggregate of many distinct things,” and may be apportioned. The language last quoted was evidently borrowed from the note to Clun’s Case, reported in Coke’s Reports, (vol. 5), Pt. 10,128, a. The note is by Eraser, wherein he says, after the remark adopted by Williams: “It is obvious, therefore, that the representatives of a party dying before the day at which interest was usually payable, would be entitled to interest up to the time of the party’s death.” Edwards v. Warwick, 2 P. Wms. 171; Hay v. Palmer, 2 Ib. 501; Banner v. Lowe, 13 Ves. 135; Wilson v. Harman, 2 Ves. Sen. 672.
In Perry on Trusts, sec. 556, the author says: “ But where an annuity is given to a widow in lieu of dower, or for maintenance of an infant, or for the separate maintenance of a married woman, an apportionment is made on the ground that such annuity is necessary for support till the death of the annuitant”; and he cites Pearly v. Smith, 3 Atk. 260; Howell v. Hanforth, 2 Black. W. 1016; Green v. Osborn, 17 S. & R. 171. And he says further: “But interest *398money upon notes, mortgages, and similar securities, accrues from day to day, although it is not payable until a fixed day, it is therefore apportionable, and trustees must pay the proportion accruing during the life of the tenant for life to his representatives,” and cites Earp’s Will, 1 Pars. Eq. 453; 28 Penn. St. 368; Sweigart v. Berk’s Adm’r, 8 S. & R. 299; Rogers’ Trust, 1 Dr. & Sm. 338. I find these authorities support the propositions so far as I have access to them.
We think that we are justified by authority in holding to an apportionment in this case, especially in view of the fact that it will be the fulfillment of the wish and intention of the testator as indicated by the terms of the will.
Therefore the decree of the Probate Court should have been affirmed.
The pro forma judgment of the County Court is reversed. Judgment for the appellee for the amount allowed by the Probate Court, with interest from date of appeal and costs; and let this be certified to the Probate Court.