Cleary v. White's Estate.

• Decision Date: 26 February 1948
• Citation: 58 A.2d 1,134 Conn. 367
• Court: Connecticut Supreme Court
• Parties: CLEARY et al. v. WHITE'S ESTATE.

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.

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 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 within a year after the death of the testator. Upon that ground interest is payable upon legacies from that time, unless some other period is fixed by the Will. Actual payment may in many instances be impracticable within that time: yet in legal contemplation the right to payment exists, and carries with it the right to interest until actual payment. * * * So, the executors in this case say, the legatees could not have had their legacies, if a bill had been filed; as the mortgage, out of which they were payable, was not received. But it was held [in certain cases previously cited], that the possibility of purchasing in fact does not determine the question, whether, according to the legal presumption the purchase might not have been made. So, the possibility in this case does not determine, whether by legal presumption the mortgage might not have been called in within a year. I cannot without rejecting the authority of those cases hold, that the mortgage, though not actually capable of being called in, is not to be considered as having been got in within the year. Constructive receipt is held equivalent to actual receipt for the purpose of the right to interest.’ In Sitwell v. Bernard, 6 Ves. 520, 539, 31 Eng.Rep. 1174, Eldon, Lord Chancellor, said: ‘Where an estate is given in various legacies, and the residue is given, it is a rule of convenience, that authorizes this Court to say, for there is no language in the will for it, that those legacies shall be payable at the end of a year from the death of the testator; because, as a general rule it may be taken, that the personal estate may be collected within a year; though in many instances that falls enormously to the prejudice of the residuary legatee. The same convenience has made the Court say, the residuary legatee shall not claim till the end of the year. In many cases the Court supposes the residue to carry interest: though in many cases the residue does not carry interest; but the Court takes the interest for a particular legatee from the residue, as a general rule of justice and convenience; though in many instances falling out against an individual.’ See also Pearson v. Pearson, 1 Sch. & Lef. (Ir. Ch.) 10, 11; Matter of Accounting of McGowan, 124 N.Y. 526, 530, 26 N.E. 1098, 1099.

The basis for the allowance of interest is, then, a presumption of law that the legacies might have been paid at the expiration of one year, and consequently interest should run from that time. Wheeler v. Ruthven, 74 N.Y. 428, 431, 30 Am.Rep. 315; Smith v. Fidelity Trust Co., 87 N.J.Eq. 247, 251, 103 A. 697; Marconnier v. Preston, 96 Wash. 374, 375, 165 P. 72. The sum allowed is none the less interest because it is bottomed upon this presumption rather than upon proof that the estate was in fact so far settled that the executor should have paid the legacy. Buchanan v. Hunter, 166 Iowa 663, 669, 148 N.W. 881. The rule ‘doubtless was...