137 Mo. App. 179 | Mo. Ct. App. | 1909
— By his will Frederick Heman, among other bequests, bequeathed to the Good Samaritan Hospital and the Pastor of Zion’s German Lutheran Church $1,000 each, and to the German Protestant Orphans’ Home $3,000. The will was admitted to probate by the probate court of the city of St. Louis and letters testamentary granted thereon to the Mississippi Valley Trust Company, January 21, 1902. On February 25, 1902, the executor named filed proof of publication of the letters. On March 22, 1902, John C. Heman, one of the sons of the testator instituted an action in the circuit court of the city of St. Louis against his brothers and sisters and their descendants, as also against all the other legatees and devises named in the will, or their representatives, including the representatives of the three institutions above named contesting the will. On the 21st of April, 1902, notice of the contest was filed in the probate court and the authority of the Mississippi Valley Trust Company, as executor, suspended, an administrator of the estate pendente lite being appointed. The trial of the contest over .the will i’e,suited in a verdict and judgment sustaining it, from which judgment the contestor, sole plaintiff in the contest, perfected an appeal to the Supreme Court, and, on May 24, 1905, that court affirmed the judgment sustaining the will. A transcript of the judgment of the circuit court sustaining the will, on its affirmance by the Supreme Court, was filed in the clerk’s office of the probate court, July 22, 1905, and thereafter the Mississippi Valley Trust Company, executor, again took on the administration of the estate by virtue of its appointment under the will, and, on the twenty-sixth day of January,
The estate of the testator consisted of both real and personal property and the value of the residue, after paying all specific legacies, satisfying all claims of creditors, .devisees and other legatees, as well as all costs and expenses attendant upon the administration and settlement of the estate was more than sufficient to pay the principal of these general legacies, as also to pay interest accruing on them between the expiration of one year after taking out of the letters and the date on which the principal.of the legacies was paid. Upon the refusal of the executor to pay this interest, the three legatees named, on March 8,1906, filed in the probate court of the city of St. Louis, a motion which, after reciting the fact of the payment of the principal of the legacies, averred that they have received no interest thereon, had received the payment of the principal of the legacies under protest and under an agreement that by the receipt of the principal they should not be prejudiced or affected in their claim to interest; and for ground of motion stated, first, that their legacies became due and payable in one year after the original grant of the letters executory upon the estate of the testator, to-wit, the twenty-first day of January, 1902, and that they had not contested the will of the testator; second, that they are entitled to interest on their several legacies from January 21, 1903, that being one year after the letters had been granted, at six per cent per annum. They accordingly moved the probate court to enter up an order against the Mississippi Yal
The able counsel for appellants and for respondents have filed briefs and arguments in support of their respective contentions which display an unusual amount of research on their part. We do not consider it necessary to burden this opinion with a repetition of them, any further than necessary in announcing our conclusion, more particularly as a great many of them, in fact the most important ones, are cited and commented on in a very exhaustive opinion by Judge Gill, in the case of In re Estate of Oatron, 82 Mo. App. 416.
Our statute provides: “If the validity of a will be contested . . . letters of administration shall be granted .during the time of such contest . . . to some other person, who shall take charge of the property and administer the same according to law,
In Lamb, Admr., v. Helm, Admx., 56 Mo. 420 l. c. 433, it is said that administrators appointed, pending a contest over the will, occupy more nearly the position of a receiver, who acts under the direction of the court, than they do the position of a general administrator.
Other cases not necessary to cite have followed in construing this provision of the statute in this way.
In State ex rel. v. Guinotte, 156 Mo. 513, it was held that under this section, if the validity of a will is contested, the administrator so appointed should hold while the contest lasted and that the contest lasted while the appeal from the circuit court in such case was pending and that no bond was required to give the appeal the effect of a supersedeas. That case was decided by a divided court, one of the dissenting judges being Judge Valliant, who afterwards, however, in Carroll v. Reid, 158 Mo. 319, l. c. 321-2, said that while he had not concurred in that opinion, yet as it was concurred in by the majority of the court, it is now the law on that subject. In the Guinotte case, Judge Sherwood, who delivered the majority opinion of the court, said, at page 525, “In consequence of the result of the will contest not having been officially certified down from the circuit court to the probate court, it was impossible for the
“Interest,” says Judge Woerner, 2 American Law of Administration (2 Ed.), *p. 1004, “in the sense in which the word is used in connection with the payment of legacies, is the compensation allowed by law for the deprivation of a legacy or distributive share beyond the period when it is payable according to the terms of a will or statute.” He states as a general rule, that interest is payable in some States at the end of a year after the death of the testator; in other States, as in this State, at the end of a year after the taking out of letters of administration.
Rice, in his work on American Probate Law & Practice, Edition of 1S94, section 5, pp. 373 to 377, after stating that the general rule is that legacies will carry interest after the the expiration of a year from the death of the testator, states that the object of this limitation was only to allow a specified time to the executor or administrator, after taking out letters, to settle the estate, and it was not designed to affect or modify the rights of the parties interested in claims or legacies; and he states the general doctrine to be that interest on a legacy only begins to accrue when the legacy itself is payable; that until the legacy is payable there is no fund to produce interest.
In State ex rel. Nichols v. Adams, 71 Mo. 620, it is held that while the suit contesting the will was undetermined, the executrix could not carry into effect the
All the authorities hold that no demand is necessary to cause interest to run when a legacy falls due and becomes payable, therefore, in this case, as there are some six months intervening between the date when the certification of the action of the Supreme Court, and of the circuit court in upholding the will, was lodged with the probate court, and the date of payment by the executor of these legacies, and as no reason is shown why they were not paid immediately upon the certification of the establishment o/the will, all the interest that these parties are entitled to on their legacies, and we think they are entitled to that, is interest from the date of the certification of the establishment of the will to the date on which the legacy was actually paid over by the executor, according to the agreed statement of facts in the case; that is to say, interest at the rate of six per cent from July 22, 1905, to January 26,1906, the last date being the date of payment of the principal, together with interest on that amount of interest from January 26, 1906, to the date it shall be paid them at the rate of six per cent per annum.
The case is reversed and remanded with directions to enter up an order accordingly, in favor of these respondents.