Way v. Priest

• Decision Date: 31 October 1885
• Parties: WAY v. PRIEST, Executor, Appellant.
• Court: Missouri Supreme Court

87 Mo. 180

WAY

v.PRIEST, Executor, Appellant.

Supreme Court of Missouri.

October Term, 1885.

Appeal from St. Louis Court of Appeals.

AFFIRMED

E. T. Farish for appellant.

(1) Mrs. Way's legacy was to be paid in a certain way, i. e., by satisfaction out of notes that she might select, and in order to make such legacy available it was necessary that she should make the selection as provided in the will. This she never did. (2) A general legacy, though directed to be paid as soon as possible, or “as soon as convenient,” is not payable until one year after the death or the grant of letters. 1 R. S., 1879, p. 37, secs. 1 and 2; 2 Redfield on Wills, 466, 69 and 70; Webster v. Hale, 8 Vesey; White v. Donnell, 3 Md. Ch. 524. And such legacy in the absence of specific directions in the will to the contrary, both as to the time when such legacy is to be paid, and the rate of interest it shall bear, bears interest only from the time it is due and payable, that is, one year from date of letters, and at the rate of six per cent. per annum, because that is the rate fixed by law.

G. H. Shields and Glover & Shepley for respondents.

(1) Assuming the legatee has elected to be paid fifty-six thousand dollars in money, interest runs on that amount from the death of the testatrix. The will expressly declares this. (2) Independent of the clause in the will to that effect the legacy would carry the stipulated interest on each note. 2 Redf. on Wills, 474, 486; Taveau v. Ball, 1 McCord (S. C.) Ch. 7; Jones v. Ward, 10 Yerg. 160; Drayton v. Grinkie, 1 Hill (S. C.) Ch. 224; Barclay v. Wainright, 14 Ves. 66. (3) A demonstrative legacy is entitled to increase and interest from death. Parkinson v. Parkinson, 2 Bradf. Sur. Rep. 77; Pierrepoint v. Edwards, 25 N. Y. 128; Ludlam's Estate, 13 Pa. St. 188. (4) A specific legacy vests at the death of the testator. Proctor v. Robinson, 35 Mich. 284; Burd v. Burd, 40 Pa. St. 182; Eldridge v. Eldridge, 6 Cush. 516. (5) The notes are specific legacies. Richards v. Richards, 9 Pierce Rep. 219; Jacques v. Chambers, 2 Call. Rep. 435; Wallace v. Wallace, 23 N. H. 149; Perry v. Maxwell, 2 Dev. (N. C.) Eq. 488. (6) But independent of all this the legatee is entitled to the order in this case under the first demand made on the executor, which was made one year and one month after the death of the testatrix.

NORTON, J.

This case is before us on appeal from the judgment of the St. Louis court of appeals affirming a judgment of the circuit court in favor of plaintiff for $3018.75. Defendant is the executor of Eliza Perry, deceased, who died leaving a will which contained the following clause: “To Mary Ann, wife of James C. Way, of St. Louis, Missouri, the sum of fifty-six thousand dollars. In satisfaction of this legacy the said Mary Ann Way may select any notes secured by deed of trust which I may leave, whereof the principal sum shall not in the aggregate exceed the said sum of fifty-six thousand ($56,000) dollars, and these when so selected, my executor shall transfer and deliver to her in satisfaction of said legacy, or so much thereof as the said notes so selected shall amount to, together with such of the interest notes of such principal sums as will make such principal bear interest from the date of my decease.”

The legatee, Mrs. Way, having been paid by defendant at various times sums aggregating $63,000 on account of said legacy, claimed that...