Dunne v. Mastick

By the Court, McKinstry, J.: The question here presented is, whether certain legatees named in the will of Nannie Walsh, deceased, are severally entitled to interest on the amounts pf their respective legacies from a date one year after the grant of administration.

The Civil Code provides (in substantial accordance with what is claimed to be the common law), that “legacies are [247]due and deliverable at the expiration of one year after the testator’s decease;” and that “legacies bear interest from, the time when they are due and payable, except that legacies for maintenance, or to the testator’s widow, bear interest from the testator’s decease.” (Sections 1368-9.)

In the present case, the testator died ,more than a year prior to the adoption of the Civil Code and Code of Civil Procedure. Prior to the time when the latter took effect, the Probate Act constituted in itself a complete probate system, and that act contained no provision allowing interest, as here prayed for.

We are also of opinion—and such seems to have been the uniform ruling—that the act of 1850, “to regulate the interest of money ” (as amended), was intended to prohibit interest when not provided for by written contract, except in the cases therein mentioned.

The sections of the Civil Code went into effect on the first day of January, 1873. When interest is not specified in a contract, but is annexed as an incident by statute, it is allowed as damages for the refusal to pay the debt. (15 Wend. 80.) The legacies were due when the Civil Code went into operation. The Legislature had power to impose on all debtors interest from the date of the adoption of the Code, by way of compensation for the delay in the payment of money already due. Such a statute is not retrospective, since it operates only on the future rights of the parties. A fresh demand and refusal would be a new assertion of a right, and would impose a new liability. So in legal effect was a neglect without a demand. (Bullock v. Boyd, 1 Hoff. Ch. R. 30; White v. Lyons, 42 Cal. 284.) We think, therefore, that interest at the statutory rate should have been allowed from the first day of January, 1873.

Cause remanded, with direction to the Probate Court to modify its decree so as to accord with this opinion.