Eliott v. Sparrell

114 Mass. 404 | Mass. | 1874

Endicott, J.

The testator, by the eighth clause of his will, gave to his granddaughter, the plaintiff, a legacy of $500, payable to her when twenty-one years of age; if she died before reaching that age, to her issue; and in default of issue, to the testator’s children then living, or the issue of any deceased child. The clause also contains the provision .that the legacy is “ to be taken from my personal estate, before making a division of the same, and invested by my executors for the especial purpose of paying the above named legacy.” The clear meaning of this is, that when the $500 shall be separated from the other personal estate, it is the duty of the executors to invest the same in prope securities, bearing interest; and though nothing is said in regara to the income or any payments during the minority of the plaintiff, the accumulation from such investment would belong to her, as the legacy was vested in her, and become part of the legacy to be paid her at twenty-one. Hall v. Cushing, 9 Pick. 395. Miller v. Congdon, 14 Gray, 114.

The only question, therefore, is whether the sum of $500 was taken from the other personal estate by the executors, as directed, and set apart as the legacy to the plaintiff. On this point, we think the accounts of the executors aré decisive that it was. In the account of Sparrell, allowed April 12, 1859, he places among the items of his payments this legacy of $500; his co-executor Magoun, in his account allowed February 8, 1859, charges himself with the legacy as received from Sparrell, and in a later account, allowed May 8, 1860, Magoun has in his schedule of payments this item: “ By cash in my hands reserved for the payment of legacy given by will of the deceased, to be paid to Lucy C. Eliott on arriving at the age of twenty-one years, $500.” It has been so held by the executor, separate from the other personal property, as the legacy of the plaintiff; and this appears in the most authoritative form in which the act of an executor can be established, by his sworn account allowed in the Probate Court. It is an “ authoritative and notorious act ” showing a change in the manner in which the property was held, as mentioned in Whitcomb v. Williams, 9 Met. 525, 534. It was therefore the duty of the executors, upon such separation, to have invested the sum according to the direction of the will. Hot having done so, they may be charged for interest. It is immaterial where the money has actually been during this period. It is sufficient, being set apart, that the duty imposed by the will has not been performed. There is no universal rule when interest shall commence. We think in this case the rule adopted in Boynton v Dyer, 18 Pick. 1, 8, is the most just, and that the computation of interest should commence on the settlement of the first accounts, these having been made promptly and within a reasonable time. The accounts of both executors having been allowed on or before April 12, 1859, we consider that the proper time. See Miller v. Congdon, supra.

As the executor Magoun has had this money in his hands during this period from April 12, 1859, to October 10, 1872, when the plaintiff came of age, the rule in Boynton v. Dyer and Miller v. Congdon should be followed, and the interest should be computed by adding the interest each year to the principal, and taking the sum for the next year’s principal.

As the executors have separated this legacy by their accounts from the testator’s other personal property, no allowance is to be made for taxes.

Exceptions sustained.