Cleary v. White's Estate.

CourtSupreme Court of Connecticut
Writing for the CourtMALTBIE, Chief Justice.
Citation58 A.2d 1,134 Conn. 367
PartiesCLEARY et al. v. WHITE'S ESTATE.
Decision Date26 February 1948

134 Conn. 367
58 A.2d 1

CLEARY et al.
v.
WHITE'S ESTATE.

Supreme Court of Errors of Connecticut.

Feb. 26, 1948.


Appeal from Probate Court, Stamford District; Alcorn, Judge.

Proceeding in the matter of the estate of Charles P. White, deceased, on appeal by Charlotte White Cleary, residuary legatee, and Richard C. Kettles, Jr., executor, from a ruling of the Probate Court for the District of Stamford that interest be paid on the legacy to testator's widow, Vivian K. White, now deceased, which appeal was opposed by Roscoe Ladd King and another, executors under the will of Vivian K. White, deceased, brought to the Superior Court and tried to the court. From a judgment affirming the ruling of the Probate Court, plaintiffs appeal.

Error and case remanded with directions.

58 A.2d 2

John S. Russell, of New York City, Matthew H. Kenealy, of Stamford, and Erwin B. Hallett and Stanley H. Borak, both of New York City, for appellants.

Francis P. Schiaroli, of Stamford, for appellee.

MALTBIE, C. J., BROWN, JENNINGS, DICKENSON, and INGLIS, JJ., and ERNEST A. INGLIS, Superior Court Judge.

MALTBIE, Chief Justice.

The issue presented by this appeal is whether a legatee of a specific sum to whom the principal of the legacy has been paid may thereafter recover interest upon it. The executors of the testator's estate filed an account in which no allowance was made for the payment of the interest. The Probate Court allowed the account except for the omission of the interest. A residuary legatee and one of the executors appealed from that decree to the Superior Court and it sustained the appeal. It held that the Probate Court was right in deciding that interest was payable on the legacy but was in error as to the method of calculating the amount due. From that judgment the resideuary legatee and the executor have appealed.

The finding, without correction, states all the facts necessary for the decision of the appeal and they may be briefly summarized. The testator, Charles P. White, bequeathed to his wife $26,500, with a provision that if this sum did not equal ‘her statutory share’ in the estate she was to receive enough more to equal that share, and with a statement that she was to receive as absolute owner either that share or the sum of $26,500, whichever should be the larger. The will contained a provision disposing of the testator's residuary estate. It was conceded at the trial that the wife's statutory share would be less than $26,500. The testator's wife died about eight months after his death, and the executors of her estate are the present claimants of the interest. On June 4, 1945, the executors of Mr. White's estate paid to the executors of his wife's estate $13,000 in partial liquidation of the legacy. On July 19, 1946, the former sent to the attorneys for the latter a check for $13,500, the balance due on the principal sum of the legacy given to her. The payment was not tendered as in full discharge of the legacy. The attorneys acknowledge receipt of the check but stated that they did not know the amount of Mr. White's net estate and that, as soon as it appeared upon a proper accounting that the sum of $26,500 exceeded one-third of the estate, they would send a proper release; and then they added this sentence: ‘This commitment to deliver the release above mentioned is conditioned upon payment of any interest which may be legally due to the extent that such interest has not been waived in whole or in part.'

Interest is allowed as damages for the wrongful detention of money; Selleck v. French, 1 Conn. 32, 33, 6 Am.Dec. 185; Venezia v. Fairfield, 118 Conn. 325, 333, 172 A. 90; General Statutes, § 4731; and it ordinarily begins to run from the time when the money is due and payable. Loomis v. Gillett, 75 Conn. 298, 300, 53 A. 581; Belisle v. Berkshire Ice Co., 98 Conn. 689, 696, 120 A. 599, 34 A.L.R. 108. Legacies, in absence of any direction in the will, are ordinarily payable when the estate has been settled. Greene v. King, 104 Conn. 97, 102, 132 A. 411. An executor or administrator owes to parties interested in the estate the duty of settling it with reasonable dispatch. American Surety Co. of New York v. McMullen, 129 Conn. 575, 581, 30 A.2d 564; Reiley v. Healey, 122 Conn. 64, 78, 187 A. 661. In the event that a legatee should be delayed in securing the money due him by a failure of the executor in the performance of that duty, the application of these

58 A.2d 3

principles would be a proper basis upon which the legatee could claim interest upon the legacy. Wheeler v. Ruthven, 74 N.Y. 428, 431, 30 Am.Rep. 315; 3 Woerner, American Law of Administration, 3d Ed., p. 1571. That interest would, however, in such a case, be a personal charge against the executor; Colt v. Colt, 33 Conn. 270, 279; and an action to recover it might be brought directly against him or on his probate bond. Appeal of American Board of Commissioners for Foreign Missions, 27 Conn. 344, 354.

It is, however, an established rule of law, subject to certain exceptions not pertinent to our inquiry, that interest will be added to general legacies for the period from one year after the death of the testator until they are paid. Webb v. Lines, 77 Conn. 51, 54, 58 A. 227; Redfield v. Marvin, 78 Conn. 704, 707, 63 A. 120; notes, 6 Ann.Cas. 525; Ann.Cas.1912B, 244; 69 C.J. 1261, § 2643. The best explanation of that rule we have found is that given by Grant, M. R., in Wood v. Penoyre, 13 Ves. 326, 332, 33 Eng.Rep. 316, in a case where legacies were to be paid out of the proceeds of a mortgage owned by the testator: ‘Wherever legacies are given out of personal estate, consisting of outstanding securities, those legacies cannot be actually paid, until the money due upon such securities is actually got in: but by a rule, that has been adopted for the sake of general convenience, this Court holds the personal estate to be reduced into possession...

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3 practice notes
  • Harbor Const. Corp. v. D. V. Frione & Co.
    • United States
    • Supreme Court of Connecticut
    • March 4, 1969
    ...of damages for the unlawful detention of a sum due. Campbell v. Rockefeller, 134 Conn. 585, 592, 59 A.2d 524; Cleary v. Estate of White, 134 Conn. 367, 369, 58 A.2d 1; see General Statutes § 37-3. We cannot hold that the referee exceeded the bounds of the reference in determining the questi......
  • American Sand & Gravel, Inc. v. Clark & Fray Const. Co., No. CV
    • United States
    • Circuit Court of Connecticut
    • December 11, 1963
    ...this nature, interest is allowed as damages and begins to run from the time when the debt is due and payable. Cleary v. Estate of White, 134 Conn. 367, 369, 58 A.2d 1. The interest from April, 1963, to date is The issues are found for the plaintiff. Accordingly, judgment may enter for the p......
  • Port Chester Elec. Const. Corp. v. Industrial Elec. Supply Co.
    • United States
    • Supreme Court of Connecticut
    • May 20, 1952
    ...for the purpose of ascertaining the damages. Campbell v. Rockefeller, 134 Conn. 585, 591, 59 A.2d 524; Cleary v. Estate of White, 134 Conn. 367, 369, 58 A.2d 1; Loomis v. Gillett, 75 Conn. 298, 300, 53 A. 581. Its addition was also justified to determine the court's jurisdiction. Stone v. H......
3 cases
  • Harbor Const. Corp. v. D. V. Frione & Co.
    • United States
    • Supreme Court of Connecticut
    • March 4, 1969
    ...of damages for the unlawful detention of a sum due. Campbell v. Rockefeller, 134 Conn. 585, 592, 59 A.2d 524; Cleary v. Estate of White, 134 Conn. 367, 369, 58 A.2d 1; see General Statutes § 37-3. We cannot hold that the referee exceeded the bounds of the reference in determining the questi......
  • American Sand & Gravel, Inc. v. Clark & Fray Const. Co., No. CV
    • United States
    • Circuit Court of Connecticut
    • December 11, 1963
    ...this nature, interest is allowed as damages and begins to run from the time when the debt is due and payable. Cleary v. Estate of White, 134 Conn. 367, 369, 58 A.2d 1. The interest from April, 1963, to date is The issues are found for the plaintiff. Accordingly, judgment may enter for the p......
  • Port Chester Elec. Const. Corp. v. Industrial Elec. Supply Co.
    • United States
    • Supreme Court of Connecticut
    • May 20, 1952
    ...for the purpose of ascertaining the damages. Campbell v. Rockefeller, 134 Conn. 585, 591, 59 A.2d 524; Cleary v. Estate of White, 134 Conn. 367, 369, 58 A.2d 1; Loomis v. Gillett, 75 Conn. 298, 300, 53 A. 581. Its addition was also justified to determine the court's jurisdiction. Stone v. H......

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