Foster v. McLane

• Decision Date: 03 December 1929
• Citation: 148 A. 28
• Parties: FOSTER et al. v. McLANE. MONROE et al. v. SAME.
• Court: New Hampshire Supreme Court

148 A. 28

FOSTER et al.

v. McLANE.

MONROE et al.

v. SAME.

Supreme Court of New Hampshire. Hillsborough.

Dec. 3, 1929.

Exceptions from Superior Court, Hillsborough County; Scammon, Judge.

Separate actions by Frank Foster and another, trustees, and by Fred B. Monroe and another, trustees, against John R. McLane, administrator. Judgment for plaintiff, and defendant brings exceptions. Exceptions overruled.

Actions to recover pecuniary legacies. Litigation took place over the validity of the will. It was terminated and the will probated in solemn form about 21 months after the testator's death. Upon such probate the defendant's tender of the amount of the legacies in full settlement for them was refused because interest from the first anniversary of the testator's death to the date of tender was not added. The estate earned some income during the litigation. The court (Scammon, J.) ruled that interest was payable as the plaintiffs claimed and that the tender made did not stop it, and the defendant excepted.

Ralph G. Smith, of Hillsboro, for plaintiffs.

McLane, Davis & Carleton and Peter Woodbury, all of Manchester, for defendant.

ALLEN, J. It is the general rule that interest runs on a pecuniary legacy beginning one year after the testator's death, although the executor may properly fail, and even have no right, to pay the legaey by such time. Kent v. Dunham, 106 Mass. 590; Ogden v. Tattee, 149 Mass. 82, 21 N. E. 227, 14 Am. St. Rep. 401; Claflin v. Holmes, 202 Mass. 157, 88 N. E. CGI; In re Woodward's Estate, 78 Vt 254, 62 A. 718, 6 Ann. Cas. 524; In re Peek's Estate, 96 Vt. 183, 118 A. 527; Esmond V. Brown, 18 R. I. 49, 25 A. 652; Barber v. Westcott, 21 R. I. 355, 43 A. 844; Colt v. Colt, 33 Conn. 270; In re Rutherford, 196 N. Y. 311, 89 N. E. 820; Powell v. Drake, S Mackey (19 D. C.) 334; O'Leary v. Smock, 95 N. J. Eq. 270, 119 A. 23, 122 A. 927; In re Eichelborger's Estate, 170 Pa. 242, 32 A. 605; Brandon's Will, 164 Wis. 387,160 N. W. 177.

In Dennison v. Lilley, 83 N. H. 422, 144 A. 523, the general rule for paying interest oh legacies is stated to be based upon a view of interest as compensation allowed by law for the deprivation of a legacy beyond the period when it is payable according to the will or by statute, and the right to receive interest is an incident to the legacy itself. If the will here had expressly provided that interest should be paid after the lapse of a year from the testator's death, the interest would be an incident of the legacy, and it at least...