Cobb v. Stratton's Estate

• Decision Date: 01 December 1913
• Citation: 138 P. 35,56 Colo. 278
• Parties: COBB v. STRATTON'S ESTATE.
• Court: Colorado Supreme Court

138 P. 35

56 Colo. 278

COBB v. STRATTON'S ESTATE.

Supreme Court of Colorado

December 1, 1913

Rehearing Denied Jan. 12, 1914.

Error to El Paso County Court; John E. Little, Judge.

Claim by Virginia Stratton Cobb against the estate of W. S Stratton, deceased. Demurrer to petition was sustained, and claim disallowed, and plaintiff brings error. Affirmed.

Robert Kerr, of Colorado Springs (Smith & Knowlton of Colorado Springs, of counsel), for plaintiff in error.

Chinn &amp Strickler, of Colorado Springs, for defendant in error.

BAILEY J.

On September 14th, 1902, Winfield S. Stratton died testate at Colorado Springs, El Paso county, Colorado. His will was subsequently admitted to probate, is now on file and of record, and his estate, at the time of the filing of the claim herein under consideration, was in process of administration and settlement, in the county court of that county. By his will, the testator bequeathed to his sister, Virginia Stratton Cobb, plaintiff in error, out of the proceeds of his estate, a general legacy of $50,000. On the 4th of February, 1907, an order was made by the court directing the executors to pay that bequest, which was immediately done.

Thereafter plaintiff filed in the court a claim amounting to $13,550 against the estate, basing her right to recover upon two grounds: First. That at common law the legacy became due and payable one year after the death of the testator and carried interest at the legal rate from September 4th, 1903, to February 14th, 1907; and, second, that in event such interest is not recoverable, then she is entitled to the increment, increase, profits or earnings on the legacy, measured by the legal rate of interest, during the like period. In connection with the claim there was filed a petition, setting forth at length the reasons upon which the claim is based. The executors were made parties and cited to show cause why the claim should not be allowed. A demurrer was interposed to the petition, which was in due course sustained, and the claim disallowed. It is to review that judgment that plaintiff brings the cause here on error.

The main question for consideration is whether the legacy bears interest as claimed. There is no disputed fact. The question is purely one of law. To determine it we need only consider certain pr visions of the will, the laws of the state relative to the time of payment of legacies, and our statutes and decisions upon the subject of interest.

By the first clause of the will it was directed that the funeral and burial expenses and all just debts and liabilities of the testator be first paid out of his estate. By the second paragraph, a bequest of certain specific personal property was made to a nephew, Carl Stratton Chamberlin. By the third paragraph, all of the rest, residue and remainder of the estate of every nature and description and wherever situate, was given, devised and bequeathed to his executors, in trust, to be used and disposed of by them in the manner provided by the will. The fourth paragraph is as follows:

'I direct that my said executors shall as soon as they conveniently can, and within the period required by law, after my decease, sell and dispose of all the real and personal estate of which I may die seized and which is by this will vested in them in trust, at such prices and upon such terms as to them or to the majority of them shall seem most advantageous, hereby giving and granting unto my said executors or unto the majority of them full power and authority to make, execute and deliver to the purchasers such proper deeds and instruments of conveyance, acquitance, relinquishment and transfer as may be necessary to vest in the purchasers full title to the property so sold and disposed of.'

The fifth paragraph contained a direct bequest of $50,000 to Earl W. Hamlin, his nephew. The sixth paragraph is as follows:

'I direct my said executors to pay to my sister Mrs. Jennie Stratton Cobb of San Jose, Santa Clara county, California, the full sum of fifty thousand (50,000) dollars out of the proceeds of my estate. * * *'

By the twelfth paragraph, the residue and remainder of the estate left after the payment of all debts and bequests was to be paid over in trust to certain trustees for the benefit of the Myron Stratton Home.

It is obvious that no definite time is fixed by the will itself for the payment of this legacy, and to determine when it was due and payable resort must be had to our statutes on that subject. Section 7234, Revised Statutes 1908, is as follows:

'Whenever it shall appear that there are sufficient assets to satisfy all legacies and all demands against the estate, the court shall order the payment of all legacies mentioned in the will of the testator, the specific legacies being first satisfied.'

Section 7237, R. S. 1908, reads:

'Executors and administrators shall not be compelled to pay legatees or distributees until bond and security be given by such legatees or distributees, to refund a due proportion of any debt which may afterward appear against the estate, and the costs attending the recovery thereof; such bond shall be made payable to such executor or administrator and shall be for his indemnity, and filed in the county court.'

Section 7257 gives a right of action on account, or a suit in equity, to every legatee against an executor to recover a legacy, provided that before any action shall be commenced for legacies the county court shall make an order directing them to be paid.

Section 7234, supra, plainly provides that before any legacy can be lawfully paid it must first be made to appear to the court that the assets of the estate are sufficient to pay all legal demands against it, and until it is so made to appear the court can make no order for the payment of legacies.

In the absence of any showing to the contrary, it must be presumed that the court in this case made the order required by statute at the earliest possible time. By the record, this legacy was not due in the sense that it was payable, under the provisions of our law, until February 4th, 1907, the date upon which the court made the order upon the executors to pay it. It was owing and was a charge against the estate at the death of the testator, but it was not payable then. Until the court made an order directing payment the executors could discharge it only at their peril. A legatee can make no lawful demand upon executors until such order is made, and certainly there can be no default in payment until a legal demand can be made, and if the legatee can make no legal demand until such order is made, even if interest were allowable at all, it would not begin to run until the legacy was ordered paid.

It is contended by counsel that the testator left the plaintiff in error an absolute general pecuniary legacy of $50,000, unconditional and noncontingent; that such legacy vested in her immediately upon the death of the testator; and since no definite date is fixed in the will for the payment of the legacy, it became due and payable, under the common law rule, at the end of one year after his death. Cases almost without number, supporting this contention, are cited. Even if it be admitted that the legacy was unconditional and noncontingent, and that, at common law and in equity, it would have become due and payable at the end of one year after the death of the testator, questions which we do not determine, the conclusion here would not be thereby affected, for the rights of the claimant are to be adjudged by our statutes and by no other rule. To uphold the contention that the common law is controlling, would overturn and nullify our entire system of probate procedure, regulating the administration and settlement of estates. We have a complete system of laws governing the transmission and disposition of the property of deceased persons, and the rights of claimants thereto, whether those rights grow out of debts, the laws of descent and distribution or out of wills, which has superseded the common law on the subject. Under our system a legacy is not due or payable within one year after the testator's death. Nor does this system require or contemplate the payment of interest to a legatee beginning one year after the death of the testator; on the contrary, a legacy is only due and payable after it has been judicially determined, by the court having the estate in charge, that there are sufficient assets to satisfy all legacies and demands against the estate, and an order for payment has been made. Dickey v. Dickey, 94 F. 231, 36 C.C.A. 211.

We come now to a consideration of the question of whether interest should be allowed on the legacy under the common-law rule. Elaborate and exhaustive argument, with citation of numerous authorities, is made to the effect that interest at common law was allowed on legacies; that the common law is in force here upon the question of interest on legacies; and that the legacy under consideration carried annual interest at the legal rate, from one year after the death of the testator until paid. As an example of intellectual exercise, research and legal attainment, the argument is attractive, instructive and entertaining, but has no application to the issue to which directed. The subject of interest is governed in this state by statute, and in no case where interest is not so provided is it recoverable, unless specially contracted for, except in the nature of damages where a refusal to pay has been willful, wrongful, fraudulent or without reasonable cause, and no such claim is advanced in this case. Our statute points out in detail, and especially enumerates the cases in which interest is allowable, assuming to cover the whole field, and it is not recoverable in any case not...