71 Mo. 620 | Mo. | 1880
This suit was instituted in October, 1874, on the bond of the executrix of the will of John Adams, deceased, to the use of Nancy Nichols, a legatee under said will. The first breach assigned was the failure and refusal of the executrix to pay to said Nancy Nichols the legacy left her by the will, all the debts of the estate having been fully paid, and there being ample funds in tbe hands of the executrix for the purpose. The second breach assigned was the failure of the executrix to collect the debts due-he estate. The third breach assigned was the failure of
It was agreed at the trial that the sum of $500 was bequeathed to the plaintiff, Nancy Nichols; that, on the 31st day of August, 1870, the proceeding instituted by said Nancy and others to contest the validity of the will of Jobn Adams was dismissed, and that the defendant, Jane Adams, is in charge of John Adams’ estate as executrix, under the bond sued on; that, before the institution of this suit, all the debts of the estate were fully paid, and that there were at the institution of the suit assets in the hands of the executrix sufficient to pay the legacy sued for aud not needed to pay debts or expenses of administration, and that, in 1870, demand was made on the defendant by the plaintiff for the payment of said legacy, and the same was not paid.
While the suit contesting the will was undetermined, the executrix could not carry into effect the provisions of the will, and could not, therefore, be in default to the legatees. Interest should have been allowed only from the time the suit to contest the will was dismissed, and not from the date of the first annual settlement. The judgment was for the right party, though founded on the wrong breach; but, in consequence of the allowance of excessive interest, the judgment will be reversed and judgment entered here for the sum of $795.