30 Me. 137 | Me. | 1849
— The statute allows one year to an executor or administrator, in which to administer an estate, and pay all claims against it, unless other provisions are contained in a will annexed to letters testamentary ; or unless the condition of the estate is such, that it cannot be done. Hence a particular legacy is payable in one year, if no time of payment is specified in the will, provided there are assets belonging to the
When it is made to appear, upon a final settlement of an estate, disposed of by will, that there is in the hands of the executor, an amount to be paid to a residuary legatee, the latter is entitled to receive the same. And if the estate does not appear to have been fully settled, there is nothing in the statute precluding a residuary legatee from receiving so much of the legacy, as he is entitled to receive by virtue of the will, the state of the executor’s accounts, and the assets in his hands. In looking into the history of the legislation upon this subject this is manifest. By the Provincial statute of
This opinion was given in a case, where it was expressly found, that sufficient assets came to the hands of the administrator de bonis non, with the will annexed, and the claim was not that of a residuary legatee, and in consequence thereof, not contingent in amount. The statute under which that case was decided did not require, that an uncertain residuary legacy should be reduced to a certainty by the executor’s account, or in any other mode, but it did require, according to the construction given to it, that an executor in order to be liable to a residuary legatee, should have received assets, making him liable to p'>y. It is undoubtedly true, that before a residuary legatee is entitled to receive his legacy, it must appear that there are assets in the hands of the executor; and if it is made further to appear, that the full amount of such assets are subject to other and superior claims, the residuary legatee must be postponed. This principle is involved in the very meaning of the term, residuary legatee. But in this respect it stands precisely the same as a particular legacy. The right to recover a residuary legacy, and one which is particular, is placed by the statute upon the same general basis. Neither can be legally claimed, without there being assets in the hands of the executor liable to pay ; the latter is recoverable in full, if there are assets sufficient for the purpose; the exact amount of the former cannot be determined, till the administration is completed, and no part thereof can bo claimed from assets no more than sufficient to pay the expenses, debts, and particular legacies, which are chargeable to the estate. But it was evidently designed that a residuary legatee, should not be postponed in the receipt of the intended bounty of the testator, till the executor had fully closed his administration. Such a construction, would render the change made by the Legislature of Massachusetts, in 1784, in substance, of no avail. It is manifest that the Provincial law must in many instances, especially when large estates were intended to be given to residuary legatees, have operated with great and unnecessary severity. It was deemed
If it should be shown by any competent evidence, that the funeral expenses, the costs of administration, allowance, if any, to the widow, the debts against the estate and all particular legacies are fully paid, and there is left in the hands of the executor assets, a residuary legatee has a right to demand and receive such part of those assets, as he is by the will entitled to. And if not paid after a proper demand, he can sue for and recover the same in an action at common law, which is appropriate.
It is no longer necessary that the executor’s account in the probate office should exhibit assets, liable to a residuary legacy, to entitle the one to whom it belongs to receive it; still such account which has been finally settled in probate, is evidence of the highest character, and such as the executor cannot controvert. And under the statute, it is immaterial whether it is filed and settled before the commencement of the action or not, provided it shows that assets were in his hands, after all claims besides those of the residuary legatees were settled, at the time demand was made and before the action was commenced. If by such account, there appeared to have been, when demand was made on the executor, a balance in his hands after paying all claims against the estate arising from expenses, allowances, and particular legacies, and more than a year had elapsed after he assumed the trust, it is a legitimate presumption, that there are no outstanding debts against the estate; for the executor’s duty required, th'at the funds should be appropriated in the payment of debts, in preference ‘to the discharge of particular legacies. And if the payment of certain debts were charged against the estate, in addition to the
So far as the settlement of an executor’s account in the probate office, should be within the jurisdiction of the probate court, it would be conclusive upon all. But the allowance of a charge against the estate, not within the probate jurisdiction, would be entirely nugatory. The payment of a sum of money to a supposed legatee, beyond the amount to which he was entitled, would furnish no protection to the executor, although his account containing the charge therefor, might have been allowed. In the case of Cowdin v. Perry, 11 Pick. 503, the Court say, “ But the question, to whom, and at what time, a legacy or a distributive portion under the will, is to be paid by an executor is one of which the judge of probate has no jurisdiction. Any decree directing the executor to pay or not to pay a legacy to a particular person, or at what time a legacy should be paid, whether made upon or without notice, would be extra-judicial, and would afford the executor no justification. It is difficult to conceive how a subsequent ratification or al
By applying these principles to the case at bar, a result will be attended with no material difficulty. The will of Benjamin Davis was proved, approved and allowed on the second Tuesday of December, 1840, and on the same day, the defendant, who was appointed executor by the will, received letters testamentary, with the will annexed. The testator gave his wife in the will, one-third part of all the property real and personal, of which he died seized and possessed, after paying all his just debts, funeral charges, the expenses of administration, and a legacy of two dollars to his son Benjamin, who was a debtor to the estate, and from whom were received the principal part of the funds, which came to the possession of the executor. All the residue of his property was given to seven of his children, who were named, in equal shares, one of whom was Sally Smith, the wife of Samuel Smith. This action was brought by Samuel Smith and his wife to recover a balance which they claim as residuary legatees, a demand having been made on July 4, 1847, which was previous to the commencement of the suit.
An inventory was returned by the defendant, in March, 1841, of certain personal property amounting to the sum of $1196,59. The defendant settled his first account of administration in the probate office, on the second Monday of March, 1848, in which he charges himself with the personal estate of the testator, as by the inventory, and claims the allowance of certain sums paid out, a considerable portion of which are to the residuary legatees, of amounts unequal. After deducting from the sum, which he charges himself, the amount paid in debts against the estate, including one of his own, the funeral expenses, and costs of administration, and the amount to which the widow was entitled, there remains a balance, one-seventh part of which exceeds the amount, which the plaintiffs have received, but is much less than the sums, which several of the ■residuary legatees have received from the defendant respectively. The defendant also settled a second account on April
It was not suggested at the trial that there were any outstanding claims against the estate, or that its administration was not in reality closed. If any debts remained against the estate at the time the suit was brought, they were barred by the statute of limitations, unless seasonably put in suit, and pending, which does not appear. The payment to other residuary legatees beyond their proper proportion is no protection to the defendant, notwithstanding the charges have been allowed in probate. It appears by the date of the charges in' the defendant’s account settled in the probate court, that there were assets in his hands after paying all claims against the estate, superior in their nature to that of the plaintiff’s, at the time this demand was made upon him. Subsequent charges have not been sufficient to reduce the amount in his hands to such an extent, as to absorb the assets then in his possession.
From the amount charged by the defendant to himself, deduct the payments made for funeral expenses, all the costs of administration, debts paid, and the particular legacy to Benjamin Davis ; from the balance so found, take one-third part thereof as the claim of the widow ; and one-seventh part of the residue, after taking therefrom the amount already received by the plaintiff’s, will be the share belonging to them, which together with interest from the time of their demand, will be the damages, which they are entitled to recover. By agreement of parties, Defendant is defaulted.