Boone & Wife against Sinkler, Executor of Durand.
A devise u-a niece, of 4,000/, to bn *paid to her one year afta' her marriages ami in the meau time to remain in the exeeutor"a .hands, he na} - in**' intmvs.f for the buim's is not amar* riage portion, but a vested legacy.
Therefore, a payment made to such legatee by the executor, on. her arriving at full age, h good,noiwith-> standing it is not a year af* ter marriage
THIS case came before the court upon a special verdict, which stated K that John Boone devised 4,000/. to his niece, “ Mary White, to be paid to her one year after her mar-a riage ; and, in the mean time, to remain in his executors’ “ hands, they paying interest for the same. That Levi 61 Durand, the defendant’s testator, who was one of the “ executors of John Boone, paid Miss White her legacy, in M 1Y79, which she received when money was greatly de- “ predated. That Thomas Boone, the present plaintiff, af-e‘ terwards intermarried with Miss White;” and the question submitted to the court was, whether the loss sustained by the depreciation of the money, should be sustained by the plaintiffs or the estate of Durand, who had paid it before it was, by John Boone’s will, payable ?
Pinckney, on behalf of the plaintiffs,
contended, that this 4,000/. was intended as a marriage portion ; every thing, therefore, which tended to lessen or reduce it, was in derogation of the rights of marriage. The money was not to be paid till a year after marriage. It contemplated an event of that kind, and probably inight have been intended for provision of a family. Any payment, therefore, before the event occurred, was void, and tended to defeat the inten= *370tion of the testator. That it was the duty of an executor to carry the intention of his testator into execution, and not to defeat it. To shew that it was in derogation of the rights of marriage, the counsel cited several authorities, particularly 1 Eq. Ca. Abr- 300. where it is laid down, that payment to a father was quasi no payment. That payment to a feme covert is not good — the husband will recover it over again, 1 Fern. 261. That if a woman, privately, before marriage, releases a bond for 1,000/. without consideration, and then marry, the payment is not good, and the husband will recover the bond. 2 P. Wms. 360. 1 Eq. Ca. Abr. to the same po'int, being in derogation of the rights of marriage ; also, 2 Fern. 17. The counsel further contended, that the conduct of Durand had a very suspicious aspect ; he was a residuary legatee of the testator, and trustee of the 'young lady; it was his duty to have protected her rights, but, instead of that, he paid her off in trash of paper-money, which was of little or no value. This, he said, was that kind of conduct which did not deserve the countenance of this court.
Pringle, contra,
admitted that if the sum had been intended as a marriage portion, and the payment ha d been made to defraud the intended husband, the doctrine laid down by the plaintiffs* counsel, and the authorities in support of it, might have applied. But this was not a marriage portion; it was only a legacy. Nothing could be a marriage portion but what is left by a father. No marriage portion could be given by a cgllateral relation. All the arguments of the plaintiffs’ counsel, were founded on an idea that this payment was made in derogation of the rights of marriage ; and that too, with an immediate idea of defeating the intended rights of the husband; whereas, nothing of that kind was stated in the verdict, or submitted to the court, and of course they could not presume it. That instead of a marriage portion, it was a vested legacy, which did not depend on marriage as a precedent condition. The year after mar-page was only directed as the time when it was payable. Its being payable with interest, made it g vested legacy j, and *371to this point he cited 2 Eq. Ca. Abr. 540. 54-2'. where it is •settled, that if a legacy be devised to be payable at twenty-one, it will go to his executor, But if it was given upon bis arriving at the age of twenty-one years, here it would be a lapsed legacy, unless it was payable zvith interest, then it would be a vested legacy. 2 Com. 270. to the same point. At devised 500Z. to be paid at twenty-five years of age, and in the mean time, interest; this was deemed a vested legacy. 2 Vern. 508.
After having cited these authorities in support of the position laid down that this was a vested legacy, and not a marriage portion — he next contended, that being a vested legacy, it was transferable ; and if so, might be released, although the time of payment was not arrived, if she was of full age. Ambler, 750. 2 Vern. 181. It was next ashed, whether, in case Durand did not choose to pay interest for money, there was any law to oblige him to pay it ? He supposed there was none. Then, if the person to whom it was payable, chose to receive it, he again asked if there was any law to prevent it? He supposed not. But admitting that it depended upon a contingency, yet even in that case, a release of such contingency, would be good. 2 Eq. Ca. Abr. 89. A possibility is releasable. Upon this ground, a devise of 3,5001. at twenty-one years of age, or marriage, was held transferable, Talb. 117. and if so, releasable. A dying before the contingency, yet it is transmissible, if not intended to defeat a precedent condition. 2 Atk. G21. 2 Eq. Ca. Abr. 89.
Rutledge, in reply,
argued, that it was very evident that this sum of money was intended by the testator as a marriage portion. That blood is a good consideration to raise uses ; and being a sister’s daughter, she might have come in under the statute of distributions, if there had been no will. This ought to be considered as a marriage settlement, payable one year after marriage ; and if so, then it was a breach of trust in the executor, who in this respect, might be considered as a trustee, to pay the money before the marriage had taken place. It was a contingent interest, which she *372had no right to release, as it was depriving the husband of an interest which he was entitled to one year after marriage.