112 Cal. 521 | Cal. | 1896
The question involved in this appeal is whether appellant, Mrs. Harvey, is entitled to interest upon a legacy of $10,000 given her by the will of the deceased.
Williams died May 6, 1891. By his will as first executed he gave in trust for his adopted daughter, Mrs. Auzerais, and her children, $100,000; to Hannah B. Fuller, $10,000; Sophia G. Cutter, $10,000; Mrs. Clinton Hardy, $10,000; Mary Green, $10,000; for a monument, $1,000'; Lodge of Masons, $1,000, and to Mrs. Auzerais. the residue of the estate.
The will contained the following provision: “ My said executors shall not be required to pay the legacies herein to said Fuller, Hardy, and Green until such time as it may be practicable to do so, having regard to beneficial management of my said estate. The said bequest of $100,000 to my said daughter Lucy is not to be reduced or diminished under any circumstances,” etc.
By a codicil the testator gave additional legacies, as follows: To Sarah W. Woart, $20,000 from the residue of his estate; to Hannah B. Fuller, $10,000 additional; to Sophia G. Cutter, $10,000 additional; to Mrs. J. Downey Harvey, $10,000 out of the residue of the estate; to Harriet E. Mowe, $5,000; to Gee Foo, $500; to Charlie, $500, and to Sophia G. Cutter, $2,500 for a monument.
The will was probated May 29,1891. The estate was appraised at $314,645.11. The time for presentation of
It is provided by section 1368 of the Civil Code that . legacies are due and deliverable at the expiration of one year after the testator’s decease, by section 1369 that they bear interest from the time they are due and payable, and by section 1370 that these provisions are in all'cases to be controlled by the testator’s express intentions.
The judgment of the probate court refusing interest is defended on various grounds.
1. It is contended that the above direction that the executors need not pay certain named legatees their legacies until it is practicable, having regard to the beneficial management of his estate, is an express declaration that the legacies were not due and payable until the executors shall deem, or the court shall find, that such payment is practicable, having regard to the beneficial management of the estate.
The first answer to this is obviously that the legacy due appellant is not one of those mentioned, and which it may be claimed may be withheld for the advantage of the estate. To prevent the application of the statutory rule the intention of the testator must be expressed in the will.
But I think that it would not matter if it were admitted that this provision of the will includes all legacies. The code rule is the common-law rule, which was induced partly by reason of public policy. A pecuniary legacy is a debt due from the estate—not a claim against the testator which must be proved and paid in due course of administration—but a claim against the estate imposed by the will. One year is allowed to the estate, during which time the executors ought to be able to collect and realize the assets, and be in readiness to discharge the obligations imposed upon the estate by the will. It would be difficult and impracticable to determine in every case when it would be con
So, too, it is presumed that the money is earning something for the estate, which the residuary legatee ought not to be able to get at the expense of the special legatee. To allow this would often involve delay in the administration of estates in the interest of the residuary.
It is therefore held, in the face of such provisions, that it will be practicable or convenient to pay at the end of one year. This is held even where administration was prevented by contests of the will or in regard to right to administer. (Powell v. Drake, 19 D. C. 334; Kent v. Dunham, 106 Mass. 586; Welch v. Adams, 152 Mass. 86; In re McGowan, 124 N. Y. 526.
In Vernet v. Williams, 3 Demarest, 349, the matter is discussed at length, and numerous authorities cited and commented upon. The conclusion is that such words in a will do not affect the rule. The court will conclude that it is practicable and convenient to pay at the end of the year and not before. In fact, the words may be held to refer to the rule, for it has been uniformly held that “ as soon as possible,” or when practicable, means at the end of the year. (Rogers v. Rogers, 2 Redf. 27.)
In Ingraham v. Postell, 1 McCord Eq. 94, it was said: “It seems to be settled, as a general rule, that the legacy shall carry interest after a year from the date of the death of the testator, even though it appears that it could not by any diligence be collected within that time, because in contemplation of law it might have been done.” I conclude, upon this branch of the case, that the legacy of appellant is not within the qualification in the will, and if it were, still it would bear interest. The rule prevailing in courts of chancery and adopted in the code declares that it is convenient and practicable to pay the same at the end of the year.
But nothing can be more certain than that the legacy is not residuary. “A residuary legacy embraces only that which remains after all the (other) bequests of the will are discharged.” (Civ. Code, sec. 1357.) There can be but one such residuum, and in the codicil containing the legacy to appellant, the testator mentions the gift of such residuum to Mrs. Auzerais after all' the gifts in the will are fulfilled. This is the residuary legacy, and the only one provided for in the will.
The provision that the legacy should be paid out of the residue did not make the legacy residuary. The intent was doubtless that the bequests not so qualified should be first paid, and not be held liable for contribution until the qualified legacies were exhausted. In that sense all the bequests are residuary as to the first in trust for Mrs. Auzerais. And all might have been expressly made so. Suppose, for instance, a will should provide for a legacy to A of $10,000, and out of the residue to B a legacy of $10,000, and after the payment of the legacy to B, the residue to O. If there was anything in the estate for C he would be the only residuary legatee. No other would come within the language of the statute. And no other would come within the reason of the rule as to interest, for, presumably, the retention of the money by the executor has increased his legacy and diminished that of the other legatees. It is shown and admitted that Mrs. Auzerais received $150,000 as residuary legatee.
3. It is contended that a legacy is not due and payable
There was no attempt to show that it was in fact i m-practicable, having regard to the beneficial management of the estate, to pay the legacy to appellant at the end of the year. On the contrary, it plainly appeared that it was practicable, for, June 6, 1892, Mrs. Auzerais filed her petition asking the payment to her out of the residuum of $75,000. She showed that there were plenty of assets in the estate to warrant the payment of that large sum to°her as residuary legatee. The executor answered, admitting the allegation, and the court made the order authorizing it, and that sum was paid. Of course, the claims of the particular legatees were prior to hers.
The court below is directed to modify the decree appealed from by allowing interest on the legacy of appellant as claimed by her.
Henshaw, J., and McFarland, J., concurred.