Lyon's Adm'r v. Magagnos' Adm'r

• Decision Date: 05 May 1851
• Citation: 48 Va. 377
• Parties: LYON'S adm'r v. MAGAGNOS' adm'r.
• Court: Virginia Supreme Court

48 Va. 377

LYON'S adm'r v. MAGAGNOS' adm'r.

Supreme Court of Appeals of Virginia.

May 5, 1851

(Absent Cabell, P.)

1. Testatrix gives a legacy, and directs it shall be paid within a year from her death. The legacy bears interest from the end of the year, though there is no hand to receive it for thirteen years.

2. Where there is no hand to receive a legacy, the executor should invest it in an interest bearing fund, or bring it into Court to be so invested.

3. The legatee having died shortly after the testatrix and before a qualification upon her estate in this country, and there having been no administration on the estate of the legatee for twelve years, the act of limitations of 1826 does not bar the claim for the legacy.

Anne M G. Magagnos was a French woman who came to this country some time before 1807. At that time she lived in Norfolk, where she kept a clothing store, by which she made a considerable property. She returned to France in 1818, and died in 1826 at Marseilles. Shortly before her death she made her will which was written in French, and was duly proved in France and in August 1827 a copy properly authenticated was admitted to record by the Borough court of Norfolk. In August 1829 Joseph Magagnos qualified as administrator with the will annexed.

By one clause of her will she says: " I leave to Jean Layene, and in case of his death, to his children, and in case he has left no children, then to his heirs or legal representatives, 1200 dollars, or six thousand francs, also payable within the year of my decease. The said Jean Layene was born in Washington, and was purser in the navy at Norfolk in Virginia during the time of the embargo."

On the 28th of November 1840, Sanford Chancellor qualified as the administrator of John Lyon; and then filed his bill in the Circuit court of Norfolk borough against the administrator of Madame Magagnos, in which he charged that his intestate was the person referred to in Madame Magagnos' will as Jean Layene, he having been a purser in the navy at Norfolk at the time designated by her, and dealing largely with her at her store; and that he died between the first of the year 1827 and 1829. The administrator answered, denying that John Lyon was the Jean Layene of the will; and relying upon the act of the 8th of March 1826 limiting proceedings against fiduciaries.

The evidence in the cause satisfied the Court below and this Court, that the intestate of the plaintiff was the party referred to in the will of Madame Magagnos; and the cause coming on to be heard in July 1843, the Court held that the plaintiff was entitled to the legacy of 1200 dollars, with interest from the 28th of November 1840; and directed an account of the defendant's administration upon the...