JAMES ALBRITTON, ADM’R. vs. WILLIAM SUTTON.
A testator devised as follows: “I give to my son, Benjamin D. Harper, a'5 my estate after settling my debts, except the $300 above mentioned. If Benjamin does not live till of age, then I dispose of my estate as follows: I give to my sisters, &c.” Benjamin died under age. Held, that he was entitled to the profits of Iho estate, (except tire $300) during his life.
The cases of Turner v. Whitted, 2 Hawks, 613, and Spruill v. Moore, !i Ired. Eg. 2S4.
Appeal from tbe Superior Court of Law of Greene County, at the Fall Term 1848, his Honor Judge Settle presiding.
Hugh J. Harper made his will and therein bequeathed $300 to Samuel W. Scarbrough, and then disposed as follows : “I give unto my son Benjamin D. Harper all my estate after settling my debts, except the $300 above mentioned. If Benjamin does not live till of age, then I dispose of my estate as follows: I give to my sisters, if ^live, or their children, etc.: all to have an equal share.”
The testator’s estate consisted of land, negroes, and other chattels, and some debts, and cash. The defendant, Sutton, was appointed the guardian of the infant Benjamin, and in that character entered into the land, and 'also settled with the executor of the testator and received the slaves and other personal property on behalf of his ward. Benjamin afterwards lived several years, and then died under 21; and the plaintiff administered on his estate, and filed this petition, praying for an account of the profits of the estates, accrued during the life of his intestate, and payment of the balance, that might be found due, alter deducting disbursments for the maintainance of the infant, The defendant put in a demurrer, which, *390on argument, was over-ruled; and the defendant appealed.
Rodman, for the plaintiff.
J. H. Bryan and J. W. Bryan, for the defendant.
Rufpin, C. J.
The decree must be affirmed. For al- • though it be a general rule, that when particular legacies are payable at a future day, the legatee is not entitled to interest before the day, yet there is an established exception to that, when the gift is to an infant child, and the parent makes no other provision for his maintainance in the mean while. Crickets v. Dalby, 3 Ves, 10. Chamber v. Goldwin, 11 Ves. 1. Wynch v. Wynch, 1 Cox 433. Heath v. Perry, 3 Atk. 101. Sheledon v. North, 3 Atk. 430.
But here the words plainly import an immediate gift of the whole estate, except a small pecuniary legacy, and vested it immediately in the son, but defeasible upon the contingency of his dying under 21; and in that case it is perfectly settled, that the legatee takes the profits, until the divesting of his estate by the happening of the contingency. Nicholas v. Osborne, 2 P. Wms. 419. Shepherd v. Ingram, 1 Arab. 448. Skey v. Barnes, 3 Meriv. 340. Turner v. Whitted, 2 Hawks. 613. Spruill v. Moore, 5 Ired. Eq. 284.
Per Curiam. Decree affirmed with costs.