118 Me. 21 | Me. | 1919
This is an action of debt brought by the plaintiff to recover a legacy of $5,000 which was bequeathed to her by the will of Henrietta T. Nickels together with lawful interest thereon from January 3, 1917. The only point in controversy is the date from which interest should be computed.
.The situation is as follows: The testatrix died on February 26, 1914. Her will dated November 9, 1911, was duly allowed and admitted to probate by decree of the Probate Court of Waldo County on May 12,1914. An appeal from this decree was taken by one of the heirs at law to the Supreme Court of Probate where the decree of the Probate Court was affirmed. Exceptions were then taken to certain rulings in the Supreme Court of Probate and were presented to thé Law Court. These exceptions were overruled and the decree of the Probate Court was affirmed, on the ground that the appellant was not an aggrieved person within the purview of R. S., (1903) Chap. 65, Sec. 28. Thompson, App’t, 114 Maine, 338. This decision was announced January 3, 1916.
Subsequent to this decision the same appellant filed a petition in the Probate Court to revoke and vacate the decree of May 12,1914, allowing the original will. On August 8, 1916, after due notice and hearing, the Probate Court entered a decree denying and dismissing this petition. From this decree an appeal was taken to the Supreme Court of Probate where, on December 4, 1916, the appeal was dismissed and the decree of the Probate Court was affirmed. Exceptions to the order of dismissal and to other rulings of the Supreme Court of Probate were presented to the Law Court and after due consideration these exceptions were also overruled and the decree of the Supreme Court of Probate dismissing the petition was affirmed. Thompson, App’t, 116 Maine, 473. This decision was announced November 24, 1917.
Counsel for defendant claims that the legacy in the case under consideration is governed by this statute and that as the second decision of the Law Court was rendered on November 24, 1917, the executor could not be compelled to pay the legacy until the expiration of one year after that date or November 24, 1918.
In our opinion this contention cannot be maintained. The time for payment of legacies in this estate was not affected by the act of 1915. Miss Nickels died on February 26, 1914. At the expiration of one year from that date under the then existing law this plaintiff was entitled to the payment of her legacy. Interest began to run from February 26, 1915, and the right to the interest after that date as well as to the legacy itself was a right vested in the legatee. The act of the Legislature did not take effect until more than four months thereafter, and did not deprive the legatee of that vested right. The accruing interest had attached itself to the principal and was incident to it, and was not imposed upon the executor for his neglect. Kent v. Dunham, 106 Mass., 586.
Since we hold that the statute of 1915 is not controlling in this case, it is unnecessary to determine whether the date of final allowance of the will should be deemed to be January 3, 1916, when the first decision of the Law Court was announced, or November 24, 1917, when the second decision of the Law Court was announced. Such discussion would be obiter dictum.
On principle the plaintiff’s legacy should draw interest from February 26, 1915, and in her argument that contention is made. But hex-claim as set forth in the writ and declaration is for the legacy “with lawful interest thereon from said third day of January, 1917.” It is beyond the power of this court to order judgment for a greater sum than is demanded in the writ.
The entry must therefore be,
Judgment for plaintiff for $6,000 with interest from January 8, 1917.