91 Neb. 127 | Neb. | 1912
This litigation arose out of the settlement of the accounts of John I). Knight, as executor of the estate of Helena V. W. Knight, deceased, his wife. Helena V. W. Knight died in 1898, and left a will which, among other things, bequeathed a legacy of $10,000 to her husband, John L>. Knight, and other property specified, and, after making some other bequests, the will gave all of the residue of her property, real, personal and mixed, to her said husband during his natural life, with remainder to various persons therein named.
John D. Knight entered upon the administration of the estate, and continued without any settlement until January, 1905, when he filed in the probate court of Lancaster county a report and account of his acts as executor of said estate. The residuary legatees under the will objected to the report, and afterwards it appears from the record that John D. Knight died, and Henry E. Lewis having been appointed administrator of his estate, the said Lewis was substituted as a party to the proceedings, and filed in the county court an application setting up the before mentioned legacy, and alleged that the same had been paid only in part. William E. Barkley, Jr., who had been appointed administrator of the estate of Helena V. W. Knight in the place of her husband, John 1). Knight, filed objections to the application of Lewis, as administrator, and the issues in the county court were made by this report of John D. Knight, and the application of the administrator of his estate afterwards appointed, and the objections of Mr. Barkley a.s administra
In Smullin v. Wharton, 83 Neb. 328, the matter involved was not a specific legacy, but a-provision of the will allowing annual support, and, the amount of such annual support having been fixed by the court, the question was whether interest would be allowed upon the unused portions of the amount so fixed. In discussing the question, however, the court referred to the rule in regard to interest upon specific legacies as applied in other jurisdictions, and stated that the rule of English courts in regard to a.n annuity payable from the body or principal of a fund seems, to be that the first payment is due at the end of the first year after the death of the testator, but when payable out of the income of the fund it becomes due at the end of the second year: and points out that in Pennsylvania it has been held that such annuities become due at the end of the first year in either event. The opinion then states that there can be little doubt that “the general rule of law is that, in ordinary cases of legacies bequeathed, the legatee is entitled to interest at the legal rate from the time they could be legally demanded.” It is then said ihat probably the rule is modified by the statutes of this state. The statutes are referred to, and it is said: “By these sections it would appear that none of the legacies
In the case of Dickey v. Dickey, 94 Fed. 231, the decided question is stated in the syllabus as MIoavs: “A refusal to pay a legacy is not AAÚlful and Avithout reasonable cause, so as to entitle legatee to interest, Avhere he claimed’ a larger sum than entitled to, and, on suit, avus alloAved only half of the amount claimed. If legacies bear interest within the provisions of Mills’ Ann. St. sec. 2252, alloAving creditors interest for all moneys after they become due, on any bond, bill, or promissory note or other instrument in writing, they do so only after an order of the court has been made directing their payment.” In the majority opinion quotations are made from the statute of Colorado quite similar to those found in our statutes, and it is said that it is unnecessary to determine whether the statutes allow interest on legacies. The statement in the opinion that interest on legacies “can only be awarded as damages” is perhaps not in harmony Avith the authorities generally. Interest on legacies, like the legacies themselves, is to be alloAved if the testator so intends, and the intention is to be derived from the construction of the whole will. Legacies, like promissory notes, may bear interest before they are due, if so intended by the testator. There is no express proAdsion in our statute in regard to the matter. In doubtful cases as to the intention of the testator, assistance may be derived from the provisions of the statute in regard to the settlement of estates. The administrator is allowed in the first instance one year’s
The trial court also was right in holding that it was the duty of the prohate court, and of the district court upon appeal, to state the entire accounts of the executor with the estate, including his credits as legatee as well as his debits and credits as executor. The ancient rules derived from the technicalities of the common law forms of action are not applicable to our probate practice. In this state the county court applies equitable principles when necessary in the settlement of estates. The decision of the district court involved the examination of many items of account, and both parties seem to be somewhat dissatisfied with the results. Several of the items allowed in favor of the John D. Knight estate are criticised by the appellants, and many that are disallowed are insisted upon by the appellees. The district court appears to have made a very thorough investigation of the whole matter.
We do not consider it necessary to discuss the mass of evidence in regard to the many items criticised on each side of the account. Upon examination of the record, we find no reason to disturb the findings of the trial court upon any of these matters presented, and the judgment is therefore
Affirmed.