80 Wis. 509 | Wis. | 1891
It is contended by the learned counsel for the defendant that this action cannot be maintained for the
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
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,
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.