Evans v. Poster

Cassoday, J. It is contended by the learned counsel for the defendant that this action cannot be maintained for the [514] recovery of tbe unpaid balance of tbe legacy in question. It will be observed from tbe foregoing statement that tbe legacy mentioned, and the provision for tbe support and maintenance of Mary Ann, were, respectively, made liens upon tbe Pewaukee farm; that, subject to such liens and legacies, tbe testatrix gave, devised, and bequeathed to the defendant tbe said farm, and also three village lots, including tbe homestead, and also all other property, both real and personal, except one village lot devised to. Marcenas. By tbe will tbe defendant was also made sole executrix of the same, and was there expressly relieved from giving any security or bonds, other than her own personal obligation, as such executrix in tbe administration of the estate or the execution and performance of any duty or trust under the will. The defendant, in her testimony, admitted that she had rented the Pewaukee farm for §325 annually; that the year before the trial she had sold it for §6,100; that the three lots which she obtained under the will were worth about $550 each, or $1,650, and that the house thereon was worth about $1,000; that she had mortgaged the lots for $1,500; and that there was personal property as mentioned in the foregoing statement. It may be conceded that the mere fact that a person named in a will as an executor has qualified as such does not, at common law, render him liable in an action at law to a legatee therein for his legacy. Deeks v. Strutt, 5 Term R. 690; Jones v. Tanner, 7 Barn. & C. 542. But it was held, even at common law, by Lord MaNsfield, C. J\, that an action of assumpsit would lie upon a promise by an executor. to pay a legacy in consideration of assets. Atkins v. Hill, Cowp. 284; Hawkes v. Saunders, Cowp. 289. An ordinary executor, under our statute, is bound to administer the estate according to law and the will of the testator, sell his goods, chattels, rights, credits, and estate, and out, of the same pay and discharge all debts, legacies, and charges [515] properly chargeable thereon, or such dividends thereon as may be ordered' and adjudged by the county court, and to perform all the orders and judgments of that court. Sec. 3794, R. S.; Scott v. West, 63 Wis. 555. But the statute goes further, and provides that, “ if the executor shall be sole or residuary legatee, instead of the bond prescribed in the preceding, section he may give a bond, in such form and with such sureties as the court may direct, with a condition only to pay all the debts and legacies of the testator, and in such case he shall not be required to return an inventory.” Sec. 3795, E. S. The same section provides that “ an executor named in any will may be exempt from giving bond when the testator has so ordered or requested in his will, unless the county court shall order otherwise.” Here the executrix was so exempted from giving such bond. Having sold and conveyed the estate thus charged with the payment of the legacy in question, and converted the proceeds thereof to her own use, and become a resident of another state, the defendant must be regarded as having accepted the devises and bequests on condition that she would pay the debts and legacies as in the will prescribed. In other words, by such acceptance she became personally liable upon an implied- promise to pay. Gridley v. Gridley, 24 N. Y. 130; Brown v. Knapp, 79 N. Y. 143; Adams v. Adams, 14 Allen, 65. Under the provisions of the will and the statutes, we think the trial court was right in holding that the legacy became due and payable at the end of the year limited for the payment of debts and legacies; and hence that the plaintiff is entitled to interest from that date, and upon unpaid balances created by partial payments. This is the rule which seems to be indicated by the authorities. Thorn v. Garner, 113 N. Y. 198; Kent v. Dunham, 106 Mass. 586; Davison v. Rake, 45 N. J. Eq. 767. It is conceded that, by some mistake in reckoning interest, [516] there was allowed to the plaintiff an excess of $55.55, which the plaintiff expresses a willingness to remit. But, under our practice, such remission can only be made in the trial court. Page v. Sumpter, 53 Wis. 657; Wylie v. Karner, 54 Wis. 598; West v. M., L. S. & W. R. Co. 56 Wis. 324. See note to this case in 14 L. E. A. 117. — Rep. By the Court.— The judgment of the pircuit court is reversed, with costs, and the cause remanded with directions to enter judgment in favor of the plaintiff and against the defendant, less any excess of interest that may have been included.