Hallett v. Allen

COLLIER, C. J. The act of 1812, “concerning the distribution of intestates estates,” requires the orphans’ court, upon the application of any person entitled to distribution of ah intestate’s estate, any time after the expiration of eighteen months from the grant of letters of administration, to make distribution of the same agreeably to law. Further, any person entitled to a legacy, or any estate by will, shall be entitled to the foregoing provisions, “ as in case of administrators.” Clay’s Dig. 196, 197, § 23, 24. A statute passed in 1806, enacts, that “ any person having a legacy bequeathed in any last will and testament, may sue for and recover the same at common law.” Id. 226, § 29. It is insisted by the plaintiffs in error, that the first act cited modifies the English rule in respect to the time when pecuniary legacies bequeathed in general terms, are dernandable, and extends it to eighteen months from the grant of letters testamentary ; and that interest cannot be recovered by the legatee until after the expiration of that period. According to the common law, where legacies are given generally to persons under no disability to receive them, the payments ought to be made at the end of the year next after the testator’s death. The law allows the executor one year from the decease of the testator to ascertain and settle the affairs of the estate; and presumes that at the expiration of that period, and not sooner, all debts have been satisfied, and the executor is then able properly to apply the residue among the legatees, according to their several rights and interest. If the testator’s circumstances justify it, the executor has authority to discharge legacies sooner; for they vest at the [558] death of the testator, and the year allowed the executors, previous to compulsory payment, is merely an arrangement for their convenience and safety. 1 Roper on Leg. 579-80. Before the expiration of the year, a general legacy is not considered due, nor can the legatee claim it; so that no interest accrues for delay in the payment of the principal. 2 Roper on Leg. 188; 1 Ves. J. Rep. 366; 1 Sch. & Lef. Rep. 10; 8 Ves. Rep. 410; 10 Ves. Rep. 334; 13 Ves. Rep. 333; 6 Madd. Rep. 15. In legal contemplation, the right to the payment of a legacy, we have seen, exists at the end of the year, and carries with it the right of interest from that time till paid; the rule will not be varied because actual payment in many cases may be impracticable within that time. 2 Madd. Rep. 81. In Pearson v. Pearson, 1 Sch. & Lef. Rep. 10, the fund did not become disposable for the payment of the legacies, till near forty years after the testator’s death: Held, that the legatees were entitled to interest after the year. See 13 Ves. Rep. 33. If the testator direct “ that no interest shall be demanded on a legacy, but that the executor shall pay it off as soon as money can be raised by selling certain property,” the legatee is not entitled to interest until a reasonable time for raising the money shall have elapsed ; but after a reasonable time the executor will be chargeable with interest, unless he assign good cause for having failed to apply the property to the object for which it was intended. 3 Munf. Rep. 59. If the time of payment of a general legacy is fixed by the will, the general rule is, that it will not carry interest before the appointed time of payment arrives. 4 Ves. R. 1; 3 Atk. Rep. 101. In Cavendish v. Fleming, 3 Munf. Rep. 198, the testator died in 1791, having bequeathed his property to be squally divided between his widow and daughter. In a suit an chancery against the executor, for an account and payment ■of the legacies, it was held that the defendant was not chargeable with interest on the daughter’s portion of the estate, until after the time when her guardian was appointed, and notice thereof given to the executor. As to the interest on legacies, see further 2 Johns. Cases, 200; 4 Mass. Rep. 215; 3 Port. Rep. 350; 9 Sergt. & R. Rep. 409; 6 Watt’s Rep. 67. It is scarcely necessary to remark, that the general rule [559] that a general legacy does not draw interest until the expiration of a year after the testator’s death, has its exceptions ; thus where the legatee is a minor, whom the testator is under a moral obligation to support, and for whom he has made no other provision, interest will be demandable immediately. 4 Mass. Rep. 208; 3 Pick. 213; 2 Roper on Leg. 192, et seq.; 2 Lomax on Ex’rs, 156, § 13, 14, 15. Where a legacy is payable at a certain time, it will bear interest from that time, although it is not demanded. 2 Salk. Rep. 415; 1 Verm. Rep. 262; 3 P. Wms. Rep. 125; 2 Ves. Rep. 568; 3 Bro. Ch. Rep. 419; 6 Johns. Ch. Rep. 33, 35. It is the rule in England, to allow but four per cent., on a legacy after the year, whether it were charged on the lands or personal estate. The ground upon which the court gives this rate of interest is, that the fund is supposed in the course of the year to come into the hands of the executor, who can there make of it four per cent. 2 Roper on Leg. 252, et seq. This rate of interest is adjusted with a view to the premium at which money can be reasonably obtained ; hence, where money has appreciated, the court has in some instances increased the interest upon legacies. Id. 256. In Brownlee v. Steel, Walker’s Rep. (Miss.) 179, the English rule of interest at four per cent, per annum, computed on legacies charged on personal property, at one year from the testator’s death, was adopted. We have not this book before us, and are uninformed as to the reasoning by which thé supreme court of Mississippi were let to adopt one half its legal rate, as the interest to be paid on legacies, and one year as the period from which the computation shall commence. The rule as applied in that State must be merely arbitrary; especially as interest on money there far exceeds what is allowed in England, and the act of 1812, which we have cited, was in force there. The statute referred to, postpones the time when general legacies are demandable, from one year after the testator’s death, to eighteen months after the grant of letters testamentary ; and consequently upon such legacies no interest will be computed until after the expiration of the latter period. This conclusion results from the reasoning upon which the English rule as to time is founded. [560] It will not do to limit the legatees right to interest to four per cent, upon the ground that the estate charged with the payment of the legacy will produce so much, or that rate may be reasonably obtained for the use of the money. The means of payment may generally be made more productive; yet ,the interest cannot be permitted to fluctuate, but must conform to some certain standard. The difference between the law here and in England, forbids the adoption of the rule which we have stated exists there. Under such circumstances, to avoid a sliding scale of interest, and the uncertainty which would follow, we feel constrained to decide, that when interest is recoverable, it must be graduated by the statute rate. We know of no other criterion to which reference can with safety be had. The rule of computation cannot injuriously affect general legatees; for if the estate chargeable to them is insufficient to pay them with interest, they will all abate their legacies pari passu. True, the residuary legatee may sometimes be the sufferer both here and in England, as where the estate is charged with more interest than it realizes. In such case, he should be watchful of his interests, and endeavor to quicken the diligence of the executor. Letters from one of the executors to a legatee in the same predicament with the complainant, written in December, 1842, January, 1843, and December, 1844, declare that the executors are not in funds to pay legacies — admit the ability of the estate — propose to pay by giving up land, if the price can be agreed on, and threaten if sued to resist a recovery. Here is evidence to show that general legacies would not be paid until property could be converted into money. The last letter is dated but nine or ten months previous to the commencement of the present suit. Each of them indicate that a demand would be unavailing. The complainant is entitled to the benefit of this evidence, and if a demand was necessary to entitle her to recover interest, it is sufficiently excused, or rather, dispensed with. It was not indispensable to the complainant’s right to interest, that a trustee should have been appointed to receive her legacy; especially as the executors had resolved not to pay legacies, until the estate was made available without a [561] sacrifice. The orphans’ court, or the court of chancery, might recognize the trustee, and adjudge the legacy to be paid to him. The case of Cavendish v. Fleming, ut supra, is not attempted to be sustained by any argument — the court merely announces its conclusion ; and we are almost inclined to think, it was induced by a Virginia statute. Be this as it may, we have seen no case in which the same, or an analogous principle is recognized. Although the bill does not alledge the precise day when letters testamentary were granted to the defendants, yet we think it entirely competent for the complainant under the general allegation to show the time. The decree pro confesso only admits the facts alledged in the bill, and consequently does not relieve the complainants from showing when they became executors. What has been said is decisive of the case, and we have but to add, that the decree is reversed, and the cause remanded.