2 Edw. Ch. 175 | New York Court of Chancery | 1834
The legacy is given to the defendant in his character of executor: it being expressly intended as a satisfaction for his care and trouble in executing the office. It is, therefore, a conditional legacy; and, according to the well-established rule in such cases, the defendant would not be entitled to claim payment without clo
The question then is, whether, under such circumstances,, there should be a deduction from or an apportionment of the executor’s legacy 1
It must be admitted that where a specific sum is proposed as a compensation for an entire service and only a part is performed, it is but reasonable and just the reward should be apportioned to the extent of the service done, But it has been said, this principle of natural justice and equity is confined to matters of contract and does not apply as between
The question, then, does not depend upon the effect of the provisions in the will, as creating a debt or constituting a contract. It is to be viewed in the light of a bequest upon condition of the services being rendered; coupled in this case, with a knowledge of their not having been entirely performed, although it may be that the condition has been substantially executed. When a legacy is given to a person in the character of executor, so as to attach this implied condition to it, the question generally has been upon the sufficient assumption of the character to entitle the party to the same. The cases establish the general rule that it will be a sufficient performance of the condition, if the legatee prove the will with a
In none of the cases, however, has an abatement or apportionment, according to the services rendered, been made a question. They only go to the point of right, at first conditional but becoming absolute. The case of Reed v. Devaynes, supra, is much relied upon by the defendant’s counsel as showing that the court will look no further than to see the right has become absolute by a bona fide acceptance of the office and that when this has been done, it will, although at a late day, allow the executor to receive his legacy. There, as the case is reported by Mr. Cox, the legacy was given in these words: “ I appoint Devaynes and Smith, executors of my will, desiring them to accept of 1007. each as a mark of my gratitude for the friendship they have shown me.” Smith claimed his legacy, although he had not proved the will; and said, in his answer, he never meant to prove it. Upon the first hearing of the case at the Rolls (3. Bro. C. C. 95.) it was held that he could not have his legacy without acting or, at least, proving the will; but after this decision and before the cause was brought on for further directions, he took out probate : and it was then thought he had sufficiently entitled himself to the legacy. It cannot but be observed, as to the case now under review, that, although the one hundred pounds was considered a gift to each of the persons as executors and, therefore, conditional, yet the legacies were not expressed to be for care and pains or by way of remuneration for services in executing the office, but, on the contrary, were intended as a mark of the testator’s gratitude for past friendship. Nor was there ány in
No case has fallen under my observation which goes so far as to deny the right of this court to interfere with the amount of a legacy in a special case of this sort; and I think the present does call for interference. No principle of law or equity will be violated. In Harrison v. Rowley, supra, the M. R., speaking of the general rule that an executor must clothe himself with the character of executor, in order to entitle himself to receive a legacy, remarks, “ if there is any circumstance to show he was backward in undertaking the trust reposed in him, he shall not have it”—thus, clearly implying the executor must be prompt to act and that any unnecessary delay may be laid hold of by the court to deprive him entirely of his legacy. Now, if it be so, the court may certainly interpose as to a part of the bequest.
But, each case is attended by its own peculiar circumstances and must be determined accordingly. Brydges v. Wotton, 1. Ves. & B. 134., may be cited as an instance ; and my decision can, perhaps, be considered as proceeding upon a new rule which has arisen from the peculiar circumstances or, rather, as forming an exception to the general rule which previous cases may have established.
I think the master has decided correctly, namely, that the defendant’s legacy should be liable to a deduction by reason of the necessity to which his refusal, in the first instance, subjected the executrix of employing an agent and of the expense such agency occasioned. Still, I am not satisfied,
The next question is, as to interest upon the defendant’s legacy, from the time he qualified as executor until he was in the receipt of funds which he could apply in satisfaction of it. Although there is no express direction in the will as to the time of payment, yet, considering the nature and object of the legacy, I think the intention must have been to postpone the payment until the executor should be in funds. Where such an intention is manifest, it is tantamount to this in effect; and a direction postponing the payment to a given